Post by account_disabled on Feb 22, 2024 5:14:08 GMT -5
Once again, the criminalization of law comes to the fore, now led by an international body, as reported in Metrópoles [1] . The argument is that the OAB has a “conservative” stance when the investigation points to the participation of a lawyer in money laundering or the preceding crime and that the professional entity has never revoked the license of a professional involved in this type of crime.
Regarding the first investigation argument, we already had the opportunity to write about the topic when we dealt with tainted fees, that is, when the lawyer receives amounts from his client and said amounts have suspicious Bulgaria WhatsApp Number origins. Our position is that when the lawyer remains in his role as a defender and acts within his role as a defender (neutral conduct) he is not a guarantor of the State and has no obligation to report. Thus, everyday activities that carry out conduct within the standards of the lex artis do not fall within the criminal framework.
Spacca According to Blanco Cordero, the European Court of Human Rights (ECtHR) ruled that lawyers have an obligation to report when, in the course of their work, they carry out in the name and on behalf of their client a financial or property transaction, or participate in advising a its clients in the preparation or execution of certain types of operations (buying and selling real estate or company assets, managing funds, securities or other assets belonging to the client, opening bank, savings or securities accounts, organizing the investments necessary for the creation of companies and the creation or administration of trusts governed by foreign regulations or similar). They are not subject to the obligation to communicate when carrying out legal advisory activities or when their activity is related to judicial procedures for the client's defense.
Therefore, in this line of argument, the FATF's stance is mistaken when it wants to anticipate as suspect the professional work of the lawyer who remains within his role as defender, that is, carrying out an activity inherent to the exercise conferred on him by his entity and foreseen as a constitutional guarantee for performing an essential function in the administration of justice.
Given these initial arguments, why should the OAB report or allow any FATF investigation into the exercise of the profession? It seems to me, unless I make better judgment, that the OAB should not give any explanation to the international control bodies. Control will be carried out by the judiciary, which, when prosecuting and judging a lawyer who allegedly committed an act of laundering, will have the constitutional guarantee of proving his innocence. After the sentence becomes final, the FATF will have the statistics it needs.
Regarding the second argument, the lack of punishment by the OAB for its professionals, the Gafi is completely unaware of the system and our statute (EOAB). The OAB does punish lawyers, as long as there is a fair process and within the rules that allow broad defense and adversarial proceedings. Mere suspicion alone does not allow anyone to be punished. We are no longer in the time of the inquisition to report “suspicions” of participation in money laundering.
On the other hand, there is, and perhaps the FATF is unaware of, the OAB Ethics and Disciplinary Court, precisely to investigate the infrastructural conduct of lawyers who commit infractions, including crimes committed under current legislation. I am a witness, as a district councilor, that we exclude colleagues from the staff when there are infractions that are judged by the Ethics Court and reviewed by the council.
Having said all this, the OAB president's statement is correct when stating that lawyers act under professional secrecy and that lawyers should not be automatically treated as criminal suspects. This is a basic rule of the presumption of innocence provided for in our Federal Constitution.
Regarding the first investigation argument, we already had the opportunity to write about the topic when we dealt with tainted fees, that is, when the lawyer receives amounts from his client and said amounts have suspicious Bulgaria WhatsApp Number origins. Our position is that when the lawyer remains in his role as a defender and acts within his role as a defender (neutral conduct) he is not a guarantor of the State and has no obligation to report. Thus, everyday activities that carry out conduct within the standards of the lex artis do not fall within the criminal framework.
Spacca According to Blanco Cordero, the European Court of Human Rights (ECtHR) ruled that lawyers have an obligation to report when, in the course of their work, they carry out in the name and on behalf of their client a financial or property transaction, or participate in advising a its clients in the preparation or execution of certain types of operations (buying and selling real estate or company assets, managing funds, securities or other assets belonging to the client, opening bank, savings or securities accounts, organizing the investments necessary for the creation of companies and the creation or administration of trusts governed by foreign regulations or similar). They are not subject to the obligation to communicate when carrying out legal advisory activities or when their activity is related to judicial procedures for the client's defense.
Therefore, in this line of argument, the FATF's stance is mistaken when it wants to anticipate as suspect the professional work of the lawyer who remains within his role as defender, that is, carrying out an activity inherent to the exercise conferred on him by his entity and foreseen as a constitutional guarantee for performing an essential function in the administration of justice.
Given these initial arguments, why should the OAB report or allow any FATF investigation into the exercise of the profession? It seems to me, unless I make better judgment, that the OAB should not give any explanation to the international control bodies. Control will be carried out by the judiciary, which, when prosecuting and judging a lawyer who allegedly committed an act of laundering, will have the constitutional guarantee of proving his innocence. After the sentence becomes final, the FATF will have the statistics it needs.
Regarding the second argument, the lack of punishment by the OAB for its professionals, the Gafi is completely unaware of the system and our statute (EOAB). The OAB does punish lawyers, as long as there is a fair process and within the rules that allow broad defense and adversarial proceedings. Mere suspicion alone does not allow anyone to be punished. We are no longer in the time of the inquisition to report “suspicions” of participation in money laundering.
On the other hand, there is, and perhaps the FATF is unaware of, the OAB Ethics and Disciplinary Court, precisely to investigate the infrastructural conduct of lawyers who commit infractions, including crimes committed under current legislation. I am a witness, as a district councilor, that we exclude colleagues from the staff when there are infractions that are judged by the Ethics Court and reviewed by the council.
Having said all this, the OAB president's statement is correct when stating that lawyers act under professional secrecy and that lawyers should not be automatically treated as criminal suspects. This is a basic rule of the presumption of innocence provided for in our Federal Constitution.