This is why society requires only the stricter ones. As pointed out by professor Klaus Günther, the members of the society that “require a stricter penalty also see themselves as victims of an unfair distribution order, because there is less than they actually deserve and address their outrage concerning the deficit of their personal balance of justice not against the distribution order noticed as unfair, but against the plaintiff of the individually illegal”1.

In addition to the requirement for stricter penalties, it is noticed a clear movement that aims at the reduction of the individual right provided by the Constitution of the Republic. Under the pretext of combating the increasing criminality, a considerable part of the society supports measures that were not seen not even at the military regime time.

In this sad context, in which is tried to undermine the right of defense, it was in progress in the Federal Senate Projects of Law 209 and 225, which amends the Money Laundering Act (Law 9,613/98). Among several changes, it should be emphasized the new wording of Paragraph 2, of item I, of article 1: “The same penalty is applied to whom: uses in the economic or financial activity assets, rights or values that knows or should know the origin from criminal violation”.

The event refers to the last phase of money laundering, that is, the use of the asset, right or value “laundered” in the economic or financial activity. The innovation is the inclusion of the “should know the origin from criminal violation”.

Initially, remember that the economic activity, according to Professor Aclibes Burgarelli, in its broadest sense, “closes in its content, as type, three essential segments, among which the commercial activity. In addition to this one, there is the activity of production, movement of goods necessary, useful or required by a consumer market; there is the financial activity, through which it is used the currency as a way to provide the credit, upon specific compensation (interests) and there is the activity of service or technology provision”2.

Therefore, it is part of the economic activity, service providers, including independent professionals, such as lawyer, physician, dentist, among others.

I think that in money laundering crime, the application of “should know” is impossible, for offense to the principles of presumption of innocence, of intimate privacy protection and, in the case of the lawyers, to the right of defense.

It is important to emphasize that the presence of “should know” or “must know” is not new in the Brazilian criminal law, set forth in articles 130, 140 and 180, all from the Criminal Code, being long the discussion on the “must know” be a form of eventual intention or culpable conduct.

I cannot verify the “must know” as a form of eventual intention, but of “stricto sensu” fault, according to lesson of masters Nelson Hungria and Heleno Cláudio Fragoso. In the eventual intention, agent knows and practicing against specific conduct, undertakes the risk of producing the outcome. It is not the case of the must know, in which doubt is expressed and is not clarified by one of the types of the fault. Thus, only for this reason, it would already be inapplicable, in my opinion, the “should know” to the money laundering crime, provided only intentionally.

But even for those that admit the “must know” as a form of willful misconduct, by eventual intention, it should be clarified that, even so, its application to the money laundering crime is illegal.

Money laundering, as known, is a process which a specific person tries to provide transparency of the legality of a good, right or value coming from one of the previous crimes, set forth in article 1 of Law No. 9,613/98.

For being a felony, only the agent that is aware of the criminal origin and practice of an act related to this case is punished, either concealing the value to move him away from the origin, or practicing acts of dissimulation to obtain legality appearance, or even using the economic-financial activity, after the concealing procedures.

Well, professor Damásio de Jesus, when commented the intentional receiving in which the agent “must know” the criminal origin of the thing, accepts it as a form of eventual intention ensuring that it is construed in a strict sense “not involving knowledge, but probability”. Thus, “in light of the circumstances, he should be completely aware of the illegal origin” 3.

However, what happens is that in the money laundering, it will be impossible to the service provider, notably the lawyer, to analyze client´s circumstances, without pre-judging him; that is, to be completely aware of, in light of the circumstances, it will be necessary to apply the presumption of guilty and investigate him.

Remember that, whilst in the receipt agent receives the criminal product, accepting the price and having conditions to analyze all circumstances that surrounding the business, in the service provision price is established by provider and it is not possible to analyze all aspects of client´s life, under the penalty of offending its privacy and intimacy.

Then, imagine a tax lawyer that serves an individual seen by the tax office as tax evader; in the project of law, evasion will also be a preceding crime. Thus, in order to not undertake the risk of being accused of that should know the criminal origin of the money, it will be necessary to judge client or presume its guilty and, anyway, breach its confidentiality to know if the fees will be paid with “clean” money, or if with “evasion” product.

Criminalists´ case will be even worse: imagine the defense of a drug dealer. It will only be possible to accept the case if the origin of the money is proved. Well, because even lawyer receives the money on the account of its legal entity, coming from a bank current account, still, there will not be a lack of accusers stating, in the event of conviction of the individual, that the lawyer should know the legal origin, because he was the first to analyze the case.

And the physician? Imagine a plastic surgery that changes the characteristics of someone´s face. Poor physician if patient were a mega drug dealer: it will face a suit.

Anyway, pure nonsense.
It is clear that the examples are radical, nevertheless, it is the professional experience that shows that radical acts are not, currently, truly exceptions. The risk is real.

Then it refers to affect the right of defense and the principle of the presumption of innocence.
Let it not be said that I am defending the receiving of illegal amounts as payment for service provision. Who receives fees, according to the legal formalities, should presume that client´s money, coming from its current account, passed through the control of rules that fight against money laundering in the banks.

There are no obligations in addition to the formal rules that direct the receipt of amounts and the consequent offer to the taxation, under the penalty of offense to the principle of presumption of innocence and privacy and intimacy invasion. The maintenance of this wording will not impair, I have no doubts, the right of defense.

It is expected real and effective attitudes of the Brazilian BAR Association. And it is hoped that it is not like the Brazilian BAR Association OAB/SP, which limits to protest through the gazette of the category, without acting concretely for the solution of the problems related to the right of defense.