LAWYER’S ROLE WITHIN AML LEGISLATIVE FRAMEWORK. LAWYER AS A GATEKEEPER

Abstract

Advocate’s professional identity is irrevocably linked with the ability to perform Advocate’s duty, and the latter, in its turn, is subordinated to the requirements of legislative normative framework, including strict and sometimes contradictory requirements of anti-money laundering (further in the text – AML)  regulation  in force. By attributing advocates (further in the text – advocates) the AML “gatekeeper” role, these legal professionals are undirectly considered as facilitators of money laundering by the global institutional regulatory regime. The origins of advocate as a  “gatekeeper” can be traced back to Financial action task force  (further in the text – FATF) introduction of this connotation by indicating towards the link between the legal services and the money laundering trends, due to the complicated legal and financial character of money laundering operations. By attributing the advocate gatekeepers role and thus subjecting the legal professional to contradictory requirements of AML regulation (duty to disclose information entrusted to the advocate by his client to competent authorities in case suspicions about money laundering arouse, criminalization of advocate’s intervention in money laundering activities, establishment of Authority for Anti-Money Laundering and Countering the Financing of Terrorism), the advocat has to conflict his professional duty requirements about duty of secrecy towards his client, thus endagering the client’s democratic rights to fair trial and effective defense. The consequences of this conflict lead to endagering the advocats independence which is closely linked with its performance abilities. Article provides an insight about the development of advocate’s new role as a gatekeeper throughout the formation of the anti - money laundering normative legislation, analyzing the origins where the concept of advocat as a gatekeeper was developed.The purpose of the article is to question the adequacy of the advocate’s gatekeeper role and to understand whether the recent reform proposals simply address regulators’ perceptions that advocates’ own understanding and implementation of these functions has not been adequate in recent times. Nonobstant the overall and dominating need for maximum transparency in the anti-money laundering sector, it can not and must not be reached at all costs, ignoring the fundamental role of an Advocat to act as an instrument securing rights to defence and fair trial inthe democratic society. There is a need from Legislator’s side to balance advocates’ multiple roles with the AML normative requirements not overstepping the red lines of the legal profession.