Fulfilling the requirements of the Law on Financial Monitoring regarding the submission of reports and information to the Ministry of Justice, lawyers, ABs and AOs who are subjects of primary financial monitoring must also ensure the preservation of legal professional secrecy. What information is covered by guarantees?
On this issue, the Bar Council of Ukraine adopted a decision on December 15-16, 2023. No. 123 “On the supervision of law offices, law associations and lawyers who practice law individually in the field of prevention and countermeasures, legalization (laundering) of proceeds obtained through crime, financing of terrorism and financing of the proliferation of weapons of mass destruction”, which was made public on the NAAU website.
We will remind, according to p. 3 p.m. 2 Art. 8 of the Law “On the prevention and counteraction of legalization (laundering) of proceeds obtained through crime, the financing of terrorism and the financing of the proliferation of weapons of mass destruction”, lawyers, law offices and associations that are subjects of primary financial monitoring are obliged to timely and fully to submit (draw up, certify) in accordance with the procedure established by the Ministry of Justice, at the request of the Ministry of Justice, reliable information and/or documents (conclusions, decisions, etc.), copies of documents or extracts from documents (read more about this obligation at link ).
At the same time, the Law “On Advocacy and Advocacy” provides for certain requirements regarding the obligation to maintain attorney’s secrecy. It is any information that has become known to a lawyer, a lawyer’s assistant, a lawyer’s trainee, a person who is in an employment relationship with a lawyer, about the client, as well as issues on which the client (a person who was refused to enter into a contract on the provision of legal assistance ) addressed to the lawyer, law firm, lawyer association, the content of the lawyer’s advice, consultations, explanations, the documents compiled by him, the information stored on electronic media, and other documents and information obtained by the lawyer during the implementation of the lawyer’s activities.
And the lawyer, the lawyer’s office, the lawyer’s association are obliged to ensure the conditions that make it impossible for outsiders to access the lawyer’s secret or its disclosure. And the persons guilty of the access of third parties to the lawyer’s secret or its disclosure are liable.
By Decision No. 123, the Council of Bars of Ukraine established that information and/or documents (conclusions, decisions, etc.), copies of documents or extracts from documents, which are developed by AB, AO and lawyers during their performance of the duties of specially defined subjects of primary financial monitoring in accordance with the Law on Financial Monitoring, and which are covered by the guarantees of attorney confidentiality, include the following documents and information in paper or electronic form:
- documents and information based on which a proper check of the client (his representative) was carried out (documents for identification and verification, questionnaires, ownership structure of a legal entity);
- monthly reports to the head of the bar office or bar association;
- part of the act of internal annual inspection, which contains the information according to which the proper inspection of the client (his representative) was carried out;
- information about financial transactions of clients.
In this regard, the RAU filed a statement with the State Financial Monitoring Service, the Ministry of Justice and the Ministry of Finance in order to ensure their compliance with the requirements of the Law “On Advocacy and Advocacy” regarding the protection of attorney confidentiality during scheduled/unscheduled inspections.
Separately, the RAU proposed to the Ministry of Justice to determine the procedure for conducting joint supervision with the Ministry of AB, AO and lawyers who practice law individually in the field of prevention and countermeasures against money laundering. Also, the Ministry of Justice was asked to include members of the NAAU Committee on the Protection of Lawyers’ Rights and Guarantees of Lawyers’ Activities and/or representatives of the Regional Bar Council in the working group when conducting planned/unscheduled inspections of law offices, law associations, and lawyers practicing law individually .