Lawyers and consultants are covered by anti-money laundering legislation a result of implementation of the third EU Money Laundering Directive by Legislative Decree No. 231, November 21, 2007 (?Implementation of the Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as well as of the Directive 2006/70/EC providing for the executive measures?).
According with Article 16 of the Legislative Decree No. 231, November 21, 2007 Lawyers shall apply customer due diligence measures ? listed under Article 19 of the Legislative Decree No. 231, November 21, 2007 - in the following cases:
- when carrying out transactions involving means of payment, assets or values amounting to EUR 15.000 or more;
- when carrying out occasional transactions amounting to EUR 15000 or more, whether the transaction is carried out in a single operation or in several operations which appear to be linked;
- when the value of the transaction is undetermined or undeterminable;
- when there is a suspicion of money laundering or terrorist financing, regardless of any derogation, exemption or threshold; and
- when there are doubts about the veracity or adequacy of previously obtained customer identification data.
According with Article 19 of the Legislative Decree No. 231, November 21, 2007 customer due diligence measures shall comprise:
- Identifying the customer and the beneficial owner, verifying their identity on the basis of documents, data or information obtained from a reliable and independent source;
- Identifying the beneficial owner - including, as regards legal persons, trusts and similar legal arrangements, taking risk-based and adequate measures to understand the ownership and control structure of the customer ? at the same when identifying the customer; and
- Conducting ongoing monitoring of the business relationship including scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the institution's or person's knowledge of the customer, the business and risk profile, including, where necessary, the source of funds and ensuring that the documents, data or information held are kept up-to-date.
According to Article 41 of the Legislative Decree No. 231, November 21, 2007 where the lawyers know, suspect or have reasonable grounds to suspect that money laundering or terrorist financing is being or has been committed or attempted they are obligated to report suspicious transactions; lawyers shall not be obliged to report information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings..
Such suspect shall be inferred by the characteristics, the entity, the nature or any other circumstance acquired due to the professional role exercised by the lawyer, also considering the economic background and the activities carried out by the client.
According to the same Article 41 (as recently amended by Art. 36, D.L. no. 78, May 31, 2010), it shall be deemed as suspicious also the frequent and unjustified cash settlement of any operation, and, in particular, the withdrawal and the deposit of cash for amounts equal or higher than 15,000.00 Euros.
In order to facilitate the individuation of suspicious transactions, according to Article. 41, paragraph 2, let. b), it has been released by the Ministry of Justice the Ministerial Decree April 16, 2010.
Such Ministerial Decree, provides lawyers with a list of ?anomaly indicators? (?indicatori di anomalia?), i.e. suspicious behaviours of the client which may give rise to the obligation for the lawyer to report the transaction.
Such indicators refer to:
a. the client?s profile (e.g. the client provides false information);
b. the professional activity the lawyer is requested to carry out (e.g, the lawyer is requested to give advice on deals which are not coherent with the client?s core business);
c. the terms of payment of the transaction (e.g. the terms of payment proposed by the client are not coherent with the praxis concerning the transaction involved;
d. the incorporation of companies, trusts and similar organizations (e.g. the client is willing, without any reasonable cause, to dissimulate or to prevent people from identifying the real owner of the firm);
e. transactions concerning properties and other registered goods (e.g. the client purchases goods at an anomalous price);
f. financial and accounting operations (e.g. the client is willing to carry out accounting operations aimed at concealing financial funds).
Lawyers shall refrain from carrying out transactions which they know or suspect to be related to money laundering or terrorist financing until they have fulfilled the report obligation.
According with Article 46 of the Legislative Decree No. 231, November 21, 2007 lawyers shall not disclose to the customer the fact that information has been transmitted in accordance with Articles or that a money laundering or terrorist financing investigation is being or may be carried out.
According with Article 8 even bar associations are involved in promoting and supervising the compliance of the lawyers with anti-money-laundering regulations.
MONEY LAUNDERING GUIDANCES FOR LAWYERS
- Notice of the UIF, February 18, 2014, Examples of anomalous behaviors related to credit and debit cards (?Schemi rappresentativi di comportamenti anomali ? operatività con carte di pagamento?);
- Notice of the UIF, December 2, 2013, Examples of anomalous behaviors related to trusts misuses (?Schemi rappresentativi di comportamenti anomali ? operatività connessa con l?anomalo utilizzo di trust?);
- Notice of the UIF, April 11, 2013, Examples of anomalous behaviors related to games and betting sector (?Schemi rappresentativi di comportamenti anomali ? operatività connessa con il settore dei giochi e delle scommesse?);
- Notice of the UIF, April 23, 2012, Examples of anomalous behaviors related to international tax and billing frauds (?Schemi rappresentativi di comportamenti anomali ? operatività connessa con le frodi fiscali internazionali e con le frodi nelle fatturazioni?);
- Notice of the UIF, March 16, 2012, Examples of anomalous behaviors related to possible frauds in the exercise of factoring activities (?Schemi rappresentativi di comportamenti anomali ? operatività connessa con il rischio di frodi nell?attività di factoring?);
- Notice of the UIF, November 25, 2010, Modification of the electronic system for the collection and management of suspicious transactions reports (?Revisione del sistema di raccolta e gestione delle segnalazioni di operazioni sospette?);
- Notice of the Ministry of Treasure, October 11, 2010, Notice intended to clarify the framework of the obligation to report suspicious transactions, as recently amended by Art. 36, D.L. no. 78, May 31, 2010 (?Circolare interpretativa per la segnalazione di operazioni sospette?);
- Notice of the UIF, September 24, 2010, Examples of anomalous behaviours related to corporations and corporate crisis (?Schemi rappresentativi di comportamenti anomali ? Imprese e crisi di impresa?);
- Notice of the UIF, July 8, 2010, Examples of anomalous behaviours related to abuses in public financing (?Schemi rappresentativi di comportamenti anomali ? operatività connessa con l?abuso di finanziamenti pubblici?);
- Notice of the Ministry of Treasure, April 16, 2010, Individuation of ?anomaly indicators? in order to facilitate the reporting of suspicious transactions by certain categories of professionals (e.g. lawyers) and accounting auditors (?Determinazione degli indicatori di anomalia al fine di agevolare l?individuazione di operazioni sospette di riciclaggio da parte di talune categorie di professionisti e dei revisori contabili?);
- Notice of the UIF, February 15, 2010, Examples of anomalous behaviours related to fraud of VAT regime in Intercomunitary transactions (?Schemi rappresentativi di comportamenti anomali ? operatività connessa con il rischio di frode all?iva intracomunitaria?);
- Notice of the Ministry of Treasure, October 12, 2009;
- UIC Resolution dated February 24, 2006, as confirmed by the Notice of the Ministry of Treasure dated December 13, 2007, n. 125367.
(Reference: Anti-Moneylaudering Forum, http://www.anti-moneylaundering.org/europe/italy.aspx)