Lawyers and money laundering
| Date | 01 July 2004 |
| Published date | 01 July 2004 |
| DOI | https://doi.org/10.1108/13685200410809977 |
| Pages | 272-274 |
| Author | Marcelo Ruiz |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control Ð Vol. 7 No. 3
Lawyers and Money Laundering
Marcelo Ruiz
In Argentina, Congress has passed the Cover-Up and
Laundering of Criminally Derived Property Law.
1
Among the most salient points of the law are a
broad characterisation of oences since it not only
punishes those guilty of converting, transferring,
managing, selling, encumbering or otherwise apply-
ing money or any other kind of assets deriving from
a crime in which they did not participate, to make it
appear as if they had a legal origin,
2
but it also punishes
those who, out of sheer recklessness or gross lack of
judgment, allow money to be laundered. That is to
say, it contemplates wrongful omission, fault or negli-
gence, and refers not only to drug dealing as the crime
generating the money to be laundered, but also other
illicit acts, such as arms smuggling, fraud against
the public administration, child prostitution, and
others.
3
In addition, it creates the Financial Infor-
mation Unit (UIF)
4
and imposes the obligation to
report.
5
As regards the duty to report, s. 20 of Law 25,246
sets forth and lists the subjects of the duty to report
any suspicious transactions to the UIF, in an attempt
to include all ®nancial and business activities that
may be involved in money laundering operations, as
well as professional activities, such as those of accoun-
tants and notaries public;
6
however, the law does
not list lawyers. In addition, s. 20 of the law grants
immunity if the con®dentiality obligation is not
complied with, wording it as follows: legal provisions
concerning the need of secrecy or professional privi-
lege of banks, tax authorities or professionals shall
not be applicable nor may be invoked by the subjects
of this duty when the request for disclosure is made by
a competent judge.
Argentina has its own money laundering law,
which although in general is a good instrument, as in
all human work is still not perfect since, for instance,
it has omitted an important issue such as tax evasion.
The law will surely need to be amended in future,
though it is undoubtedly a good launch platform to
combat crime. Among the issues currently debated
worldwide in the ®ght against money laundering is
that of including independent legal practitioners and
professionals in the applicable rules. As a result of
such debates, on 4th December, 2001, the European
Union adopted Directive 2001/97/EC of the European
Parliament and of the Council, which, among
other issues, establishes a broader range of professions
and activities subject to Directive 1991 on the pre-
vention of the use of the ®nancial system for the
purpose of money laundering,
7
including within the
range notaries public and other independent legal
professionals.
8
The activities of professionals Ð lawyers, public
accountants, ®nancial and tax advisers Ð are based
on a special relationship of trust with their clients. In
general, these professionals transact important aairs
entrusted by their clients. Some of these professions
were regulated by the state long before the laundering
of criminally derived money.
Indeed, criminally derived money has become a
major issue only in the last few years, due to a
number of commonly known events that raised
awareness of a longstanding drug problem in Argen-
tina. Therefore, the acting of professional councils
and associations is essential, and it will probably be
necessary to update the rules governing the practice
of certain professions.
In the case of lawyers, Congress enacted Law 23,187
in 1985, creating the Buenos Aires Public Bar Asso-
ciation
9
and regulating the lawyers' professional
activity. The law lists a number of speci®c duties to
be discharged by lawyers generally notwithstanding
other duties to be established by special laws, as fol-
lows: to faithfully observe the Argentine Constitution
and the laws issued thereunder; to act with loyalty,
integrity and good faith in discharging their pro-
fessional duties; and to fully observe the attorney-
client privilege. In compliance with Law 23,187, a
Code of Ethics was drafted and adopted in March
1987, which establishes the fundamental duties of law-
yers, as well as general provisions and disciplinary
penalties.
In order to analyse the incidence of the lawful prac-
tice of the law on money laundering as a crime, it is
essential to distinguish the activities of a lawyer
when providing legal advice and when acting as coun-
sel in a lawsuit. As regards legal advice, s. 6 para. (a) of
Law 23,187 establishes among the speci®c duties of
lawyers the duty to faithfully observe the Constitution
and the laws issued thereunder. In turn, the Code of
Ethics contains rules that consider certain acts that
Page 272
Journalof Money Laundering Control
Vol.7, No. 3, 2004, pp. 272± 274
#HenryStewart Publications
ISSN1368-5201
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