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Anti-Money Laundering Legislation…Money laundering poses risks for Lawyers – export
– Urges Guyana to seek “super compliance”
By: Kiana Wilburg
Certified anti-Money Laundering Specialist, Toussant Boyce, has said that it is of paramount importance that Guyanese Lawyers pay attention to the risks money laundering poses to their profession.
Boyce expressed this view during his lecture held at the Conference Room of the High Court on Friday.
This presentation, which highlighted the obligations of lawyers as gate keepers, was organized by the Guyana Bar Association and delivered by Boyce, who is also a member of the local Bar.
Certified Anti-Money Laundering and Countering the Financing of Terrorism Specialist, Toussant Boyce
It also comes in light of the fact that Guyana has failed to implement the recommendations made by the Caribbean Financial Action Task Force (CFATF) to the Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) Act 2009 by the November 18 deadline.
The Guyanese scholar began by defining the role of lawyers as gatekeepers within the global anti-money laundering architecture and local legislation for AML/CFT.
Boyce noted that Attorneys-at-Law fall within the group known as Designated Non-Financial Businesses and Professions (DNFBPs).
This being the focal point of his discourse, he firstly pointed to a number of risks and vulnerabilities (danger signs) that lawyers should be aware of, particularly when engaging in certain types of transactions.
Those transactions include the buying and selling of real estate; managing of client money, securities and other assets; management of bank, savings and securities accounts; organization of contributions for the creation, operation or management of companies; and involvement in the creation, operation or management of legal persons or arrangements, and buying and selling of business entities.
Among the many risks that lawyers were made aware of, is the need to understand the risk profile related to the practice of the profession in Guyana (including the diversity and number of lawyers) so that the applicable AML/CFT laws can be appropriately designed.
Other risks include those arising from the need to balance rights related to the use of privileged information and privileged documents; risks related to managing client confidentiality; managing constitutional and ethical obligations to clients; risks in managing uncertainties arising from the collision of their obligations as gatekeepers with their oath and obligations to clients; risks arising from managing tensions between client expectations and their need to conduct client due diligence and report suspicious transactions; risks related to their AML/CFT obligations versus their role as members of an independent Bar; the risk of litigation related to their AML/CFT obligations; the risks that tainted fees, that is, fees paid from the proceeds of crime which can attract criminal prosecution and criminal or civil forfeiture; risks related to compliance costs and time; and reputational and integrity risks.
Boyce noted that lawyers are walking a tightrope because their services can be sought for the same reasons by criminals with illegitimate means and also used by clients with legitimate means.
A number of vulnerabilities or danger signs were also noted and discussed.
Boyce noted that a robust AML/CFT regime contributes to a healthy economy, and a country’s reputation is important.
He said that, “the waves on the sea of international efforts to combat AML-CFT, corruption and fraud are too powerful for the little boats of hope and political partisanships that plague small countries like ours.”
Boyce pointed out that global AML-CFT “is for real” and that “it bites just as badly as it barks” but we cannot be pessimistic.
He explained that we must aim to pass the legislation currently on the table to meet our FATF compliance objectives but also aim “not just for ‘compliance’ but “work towards a form of ‘super-compliance’ in some respects because FATF is adopting new standards in 2014 that will focus not only on technical compliance but also on effectiveness assessments.
He urged that Guyana use the time ahead to examine its own peculiar local socio-economic circumstances and aim for a ‘gold plating’ of some key legislative provisions for local financial regulation, particularly, a robust AML/CFT infrastructure in a way that is anticipatory and exceeds the minimum requirements, while fully and carefully tailored to current conditions.
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