The past years according to law enforcement agencies [*] lawyers are supposed to play an important role in facilitating crime. It seems that governments forget that it is essential to have adequate legal support against a powerful government and other powerful parties, as they too can make mistakes and act unlawfully.
The Council of Bars and Law Societies of Europe (CCBE) in latest newsletter warns that the independence of lawyers is threatened:
Adoption of a position paper on the Anti Money Laundering (AML) package
In its position paper on the AML package, presented by the Commission in July 2021, the CCBE stresses that whereas it supports the efforts of the Commission with regards to AML/CTF, some proposed measures have to be vigorously opposed. In particular, the CCBE is worried that the new provisions on the oversight by national authorities and by a supranational European body will erode the independence of lawyers and Bars from governments and other state actors. This independence is the key protection for the rule of law and the rights of citizens. Moreover, while professional criminal money launderers will always target AML-regulated sectors, the AML risk awareness in the legal sector is very high. Professional secrecy/legal professional privilege is a fundamental principle without which there would be no proper protection for clients and must be protected. Finally, several recommendations are addressed to the stakeholders. For example, European institutions must ensure that neither Member States nor the AMLA as the European supervisory body can directly or indirectly interfere with the independence of lawyers which is an integral component of the rule of law and the performance of legal services.
In an article on rule of law in the same newsletter CCBE is concerned about how the report addresses the role of lawyers:
Rule of law
Following the discussions and the presentation of the 2021 Rule of Law (RoL) Report by the European Commission at the Standing committee meeting in October 2021, the CCBE statement on the 2021 Rule of Law Report was adopted on 16 November 2021 and circulated to relevant stakeholders.In this statement the CCBE welcomes the explicit recognition of the importance of the independence of lawyers and role of the Bars to guarantee lawyers’ independence and professional integrity in the chapter on justice systems in the 2021 RoL Report. The CCBE considers this to be a very positive step forward in recognising the role of lawyers and Bars within the justice system and in relation to the strengthening of the rule of law.
On the other hand, the CCBE regrets that the RoL Report does not provide a deep analysis of independence of lawyers and Bars in the way it is done for the judiciary and prosecutors in the same report. The CCBE therefore calls for an equal approach in the next RoL report with a more developed analysis of the independence of lawyers and Bars as indispensable component of the independence of the justice system and of the rule of law.
Furthermore, the CCBE welcomes the intention of the Commission to include country specific recommendations in the next Rule of Law Report and suggests that these should refer, where appropriate, to the need to ensure the independence and safety of all justice actors, including the lawyers and the Bars, as well as the obligation of the Member States to ensure access to justice, legal aid and relevant funding to safeguard this access.
The CCBE acknowledges the importance of strengthening the rule of law for the future of democracy in Europe and, therefore, confirmed its readiness to contribute to the next 2022 Rule of Law Report. In this regard, the official invitation of the Commission has been received inviting the CCBE to contribute to the public consultation launched by the Commission on 1 December 2021. Access to the 2022 Rule of Law Report targeted stakeholder consultation is available here.
[*] FATF is of that opinion, OECD has started an anti-lawyers campaign ‘Ending the Shell Game: Cracking down on the Professionals who enable Tax and White Collar Crimes‘.
Addition 31 May 2022
Ms. Elżbieta Franków-Jaśkiewicz, chair of MONEYVAL, wrote an editorial for eucrim 2022/1 explaining that all lawyers are involved in supporting criminals:
Traditional money laundering uses offshore jurisdictions while concealing the true ownership of assets behind several layers of “shell” companies. Specialised “gatekeepers,” e.g., lawyers, accountants, and other service providers often help launderers set up such companies, trusts, etc. The “Pandora papers,” like the “Panama Papers” five years ago, showed that “gatekeepers” can be complicit in largescale, transnational money laundering schemes involving corrupt politicians and high-net worth individuals seeking to evade taxes. This is the reason why MONEYVAL has been focusing on such professions and working with the FATF to enhance their regulatory regime. In 2021, we achieved an important change in the international FATF standard to regulate the transnational operations of “gatekeepers.” This change will oblige certain professions to establish group-wide anti-money laundering programmes and pave the way for tighter supervisory cooperation among governments. These measures will be challenging to implement, since supervisory cooperation in this area did not exist before. However, governments must mobilise their efforts in order to finally curb the money laundering abuses we have witnessed in recent years. (…)
The difficulties with supervision of both “gatekeepers” and virtual assets can only be overcome by using innovative supervisory methods. Necessitated by the challenges of the pandemic, MONEYVAL has just completed a typologies study looking into supervisory practice in times of crisis and under challenging external circumstances, which is sure to help us improve supervision.
The quote shows that there is international uniformity of thinking (groupthink) by people who have no knowledge of the legal profession. The solutions are always the same: AML-programmes, typologies, sanctions and digital surveillance; instead of improving the regulations the lawyers work with.
It is interesting to note that all lawyers will have to deal with measures that cost a lot of money, while those who support criminals are only a few.