18.11.2021
Author: Jarosław Kruk - attorney at law, managing partner | Sylwia Działo - lawyer
Amendments of the Law on Prevention of Money Laundering and Financing of Terrorism which amended in March 2021 entered into force at regular intervals. The last change included accounting offices, which you can read about in our earlier article:
The amendments not only broadened the scope of regulation, but also substantially modified the existing wording of the AML Act. On 31October 2021, the change also took effect for advocates and legal advisers, who must implement and follow specific AML procedures.
In light of article 2 sec. 1 it. 14 of the amendment of the Law on Prevention of Money Laundering and Financing of Terrorism, advocates, legal advisers, foreign lawyers ortax advisers are included in thegroup of obligedinstitutions, provided that they providelegal assistance in specific cases, which includes, inter alia thepurchase or saleof real estate, an enterprise oran organised part of an enterprise; managing client's funds, financial instruments or other assets, or concluding an agreement for maintaining a bank account, securities account or performing actionsrelated to maintaining such accounts. Furthermore, in accordance with under the Act, legal advisersor advocates who are counted among the obliged institutions should provide legal assistance when making contributions to a capital company or increasing the share capital of a capital company, as well as when establishing, operating or managing capital companies or trusts.
Importantly, legal advisers and foreign lawyers exercising their profession in an employment or service relationship in offices serving the public administration, other state or local government organisational units or in entities other than the companies referred to in Article 8 sec. 1 of the Act of 6 July 1982 on Legal Advisers are not included among the obliged institutions.
Lawyers, as well as other obliged institutions listed in the Act, have been imposed specific obligations related to anti-money laundering and financing of terrorism. Legal advisors or advocates are obliged, among others, to identify and assess potential risks in economic relations, to apply financial security measures - if, for example, a lawyer has the status of an entrepreneurand carries out an occasional cash transaction of the equivalent of EUR 10,000 or more, regardless of whether the transaction is carried out asa single operation or as several operations that are interrelated. The application of financial security measures is also a condition for access to anonymous safe deposit boxes. In light of Article 43 sec. 2 of the AML Act, lawyers must conduct a detailed analysis of all transactions carried out both in the context of business relationships and occasional transactions, if the transactions will involve very large amounts or, for example, will appear to have no legitimate legal basis.
In addition, lawyers are also required to train employees (and training should also cover issues related to the protection of personal data), have a procedure for anonymous reporting of violations, report suspicious transactions to the General Inspector of Financial Information, file a notice of suspicion of money laundering or terrorist financing, or the obligation to suspend transactions. The amendment to the AML law introduced the obligation for senior management to not only accept the internal AML and terrorist financing procedure, but also to update it.
It should be remembered that, as in the case of any other entity included into obliged institutions, lawyers are subject to administrative penalties for non-performance or improper performance by obliged institutions of the obligations imposed on them by the AML Act.
The inclusion of lawyers among the group of obligated institutions was aimed, inter alia, at resolving the conflict existing in the doctrineand jurisprudence related, on the one hand, to the obligation to maintain confidentiality in the case of lawyer-client relationships, and on the other hand, to the need to prevent money laundering and terrorist financing.
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