Since 1998, with the enactment of the Money Laundering Act, many people and institutions are responsible for informing the Brazilian supervisory board – Coaf – on the performance of suspected transactions of becoming part of a money laundering process. In other words, transactions involving values suspected of coming from practice of crimes, capable of hiding the origin of such values, their property, location etc. Thus, for example, banks, administrators of credit cards and brokers of securities, for many years, have been subject to information of suspected transactions.
In 2012, many amendments to the Money Laundering Act were made. One of them, hereby considered, was to include people that provide assistance, consulting, accountancy, auditing or any type of support in specific real estate, financial and corporate transactions, amongst the persons that must inform suspected operations to Coaf. Then the issue raised is if lawyers would also be subject to such obligation.
On the one side, as recognized by Coaf, advocacy has an own regulatory body: the Federal Board of the Brazilian Bar Association that is the panel that holds exclusive competence to regulate the subject.
Regarding an eventual regulation, especially with regard to the obligation to inform suspected transactions, the great fear is the breaking of the necessary relation of confidence that should exist between professional and its client for the good legal advice. This fear seems us groundless. This is because the By-Laws of the Brazilian BAR Association established the inviolability of information in possession of the lawyer, in order to any data related to client or its activities in the exercise of the typical duties of advocacy – litigious or consultive – is protected by a special law and cannot be object of communication to anyone.
Thus, the contentious performance, disputed, judicial or administrative, in the defense of its clients’ interests, either in civil, criminal, administrative etc. matter, as well as the consulting of legal character are typical activities of advocacy, and it is duly protected thereon the professional confidentiality. In this case, confidentiality related to the lawyer and its client relationship is a legal instrument of performance of fundamental rights and has to do with the performance of lawyer´s constitutional function. The communication obligation would be limited to the cases of non-legal consulting, alien activity, including to the regulation by the Federal Board of the Brazilian BAR Association.
On the other hand, the professional of the advocacy, although exempted to inform suspected activities of its clients, it must refrain from cooperating with them, when there are clear and objective reasons to suspect them. Especially in the consultive scope, services provided by lawyers can contribute, even involuntarily, to the practice of money laundering crime by its clients. Within this scope, it seems important a regulation on the part of the Brazilian BAR Association. The lack of guidelines, unlike ensuring the freedom of the professional exercise, results in uncertainty. The other professionals, intervening parties in these same operations in which lawyers provide consultancy, shall inform Coaf when there is suspected laundering. This is what will happen to those who provide consultancy, assistance, counseling or consulting services (Resolution Coaf 24), in addition to auditor and accountants (Resolution CFC 1,445) and, more recently, of the Board of Trade (DREI, Normative Instruction 24, of 2014). In these cases, not only Coaf will become aware of the transaction, but also the lawyers will be the only intervening parties legally unprotected.
Therefore, it is important that the Brazilian BAR Association establishes the parameters for the performance of the lawyers in this area, providing security and preventing that the professional be held accountable for the exercise of its duties. In this regard, it can be considered foreign experiences, such as the guideline of good volunteer practices of the United States of America (2010). They are nothing but basic precautions that provide more tranquility, so that the lawyer, within this new regulatory environment, ethically exercises its occupation.
The number of lawyers investigated and suited for supposedly contributed to money laundering of their clients in operations as listed by law has been increasing. If the constraint of the existence of an investigation or of a criminal procedure are already serious for personal and professional life of any citizen, they are even more painful for lawyer that depend on their reliability and reputation to operate in the legal market.
Inviolability and confidentiality do not impede this growing number of criminal investigations against lawyers, that is why regulate the subject, quite contrary to face our prerogatives, is a responsible measure that will help the class, establishing the limits that cannot be exceeded. A diligent and consistent regulation could protect lawyers and also reinforce the magnitude of their mister for the justice administration, well placed in the constitutional text.
