Key Benefits:
The National Bar Council,
In light of amended Act No. 71-1130 of 31 December 1971 on the reform of certain legal and judicial professions, including article 21-1;
Having regard to Decree No. 91-1197 of 27 November 1991 as amended organising the legal profession, including Article 38-1;
In view of Decree No. 2005-790 of 12 July 2005 on the rules of ethics of the legal profession;
Having regard to National Bar Council decision No. 2005-003 of 9 July, 10 September and 4 November 2005,
Decides:
All lawyers, natural persons, registered at a French bar, subject to the reserves and exceptions set out below, shall be subject to these rules of procedure when, as part of their professional activity, they conduct, on behalf of and on behalf of their client, any financial or real estate transaction or when they participate by assisting their client in the preparation or execution of transactions concerning:
1° The purchase and sale of real property or trade funds;
2° The management of funds, securities or other assets owned by the client;
3° Opening bank accounts, savings or securities;
4° Organization of the necessary contributions to the creation of societies;
5° The constitution, management or management of societies;
6° The formation, management or direction of foreign trusts or any other similar structure.
Under the reserves referred to in Article L. 562-2-1 of the Monetary and Financial Code, lawyers are not subject to these Regulations as long as they engage in legal consultation activities or when their activities relate to legal proceedings on the occasion of any of the six activities provided for in Article 1.
Lawyers carrying out one of the activities referred to in Article 1 must exercise constant vigilance and establish internal procedures to ensure compliance with the requirements of Act No. 2004-130 of 11 February 2004 and Decree No. 2006-736 of 26 June 2006, including all the requirements relating to:
- the obligations of identifying clients and economic beneficiaries;
- the examination of unusually complex operations greater than 150,000 euros and the obligation to record its characteristics in a special register made available to the sticker and TRACFIN;
- the statement of suspicion;
- to the control by the sticker of respect for the communication with TRACFIN referred to in Article 4.
Lawyers must ensure in all circumstances respect for professional secrecy.
When, pursuant to the provisions of Article L. 562-2-1 and L. 562-3 of the monetary and financial code, the subject lawyer shall make a statement of suspicion, he shall give the sticker, for transmission to TRACFIN, all relevant information and documents. When TRACFIN subsequently claims the documents relating to the statement of suspicion provided for in Article L. 563-4 of the monetary and financial code, the lawyer author of the Code must promptly forward the required documents and send them to the sticker.
When, pursuant to the sole article L. 563-4 of the monetary and financial code, TRACFIN asks a lawyer for the purpose of reconstituting all transactions made by a natural or legal person related to a suspicious transaction, TRACFIN shall not transmit to TRACFIN that the information and documents retained in the course of the performance of its obligation of vigilance relating to the identity of its client and the copy of the act establishing the opportunity
Each subject lawyer must adopt internal written rules describing the diligences to be performed for the purposes of the above-mentioned texts and these regulations, and providing guidance on the sums and nature of the transactions to be subject to particular vigilance taking into account the activities performed.
The right to inform the client of the legalized statement of suspicion provided for in Article L. 574-1 of the monetary and financial code must be expressly recalled.
The due diligence rules may be proportionally adapted to the quality of the clients of the subject lawyer, in particular when they are professionals covered by section L. 562-1 of the monetary and financial code.
All these rules are communicated to the sticker at his request.
The information, declarations and documents relating to the implementation of articles L. 562-2-1, L. 563-1, L. 563-3 and L. 563-4 of the monetary and financial code, supplemented, if any, by the implementing decree, must be kept in accordance with the terms and conditions necessary to ensure confidentiality and to permit the communication as soon as possible under the conditions laid down in Article 4.
The internal rules provided for in Article 3 shall specify the procedure to be followed in the event that an amount or transaction appears to be subject to a declaration in accordance with Article L. 562-2-1 of the monetary and financial code.
The procedure shall include the following:
- prior information from the internal control officer;
- the registration and retention of documents relating to the reporting transactions.
For the purposes of section L. 563-3 of the monetary and financial code, subject lawyers must conduct a special examination of any significant transaction that meets the cumulative characteristics defined in that section, i.e., that meets all of the following four conditions:
1. The transaction does not fall within the scope of the statement of suspicion referred to in Article L. 562-2-1 of the monetary and financial code.
2. Its unit or total amount is greater than the sum of 150,000 euros.
3. It is present in unusual conditions of complexity.
4. It does not appear to have economic justification or lawful object.
At the end of this review, the document prescribed by Article L. 563-3 of the monetary and financial code is established if the transaction is performed and the justifications obtained are not deemed sufficient. This document should include information collected and documented in particular:
- the origin and destination of the sums as well as the object of the transaction;
- the identity of the principal and of the economic rights holder(s) (name, address, profession);
- the characteristics of the operation under the four criteria set out in the first paragraph of this article.
The document is only communicated to TRACFIN and the sticker at their request.
The subject lawyer holds, for five years, the document and the documents attached to it at the disposal of TRACFIN and the sticker.
Lawyers must ensure that all these requirements are properly applied within their structure and that lawyers and staff receive the necessary information and training and appropriate to the operations they perform.
They must have an internal control system for natural lawyers who are registered in a French bar unless they exercise their professional activity within a structure with moral personality. In this case, the obligations set out in this Part of the Regulation shall apply exclusively to the corporation.
This includes:
- a system for monitoring legal and/or financial transactions and internal procedures;
- an organization to retain documents and information that are relevant to their vigilance obligations and their reporting obligations;
- a device specific to transactions that may have increased risks of money laundering of illicit origin or the financing of terrorism.
More generally, lawyers and subject structures ensure that adequate internal control is put in place by adapting in a proportional and reasonable manner all devices provided for the nature and volume of their activities and the risks to which they are exposed. They regularly update internal procedures so as to avoid any breach that may result in judicial or disciplinary sanctions, significant financial losses or reputational impairments.
All information resulting from the internal control activity is not accessible to TRACFIN. Only the sticker may have access to it provided that the application is motivated and made to the L. 562-7 or L. 563-6 of the monetary and financial code.
In order to ensure compliance with ethical rules and legislative and regulatory provisions on combating money laundering and the financing of terrorism, the internal control system for internal operations and procedures is:
- verify that the operations carried out by the lawyers or the subject structures, as well as the organization and internal procedures, comply with the applicable provisions, including those resulting from internal instructions to the exercise structure;
- verify the quality and preservation of the information and documents necessary to implement the applicable provisions;
- monitor and evaluate the effective implementation of internal procedures to address any malfunctions of the Chief of the obligations under Title VI of the Monetary and Financial Code and these Regulations;
- conduct an analysis of the causes of possible non-compliance with procedures and limitations so that, where appropriate, corrective actions are undertaken.
In addition, the subject structures designate in writing an internal control officer, to ensure consistency and effectiveness of the risk of non-compliance. The responsibility for internal control shall be responsible for the implementation of the device provided for in Article 11 and:
- to identify the ethical and legal provisions necessary to comply with the obligations referred to in the law of 11 February 2004 and its implementing decree of 26 June 2006, if applicable in connection with the sticker or his delegate;
- to disseminate to all lawyers in the exercise structure the applicable legal provisions on the matter and internal procedural forms and to verify that they have reliable information and the necessary training;
- to monitor compliance by lawyers with the structure of the entire applicable provisions and the effectiveness of the implementation of internal procedures;
- to monitor the right of access of lawyers collaborating or associated with the information, information and documents relating to the implementation of their vigilance and reporting obligations within the form of internal procedures and their annexes;
- to audit the lawyer(s) concerned, in respect of confidence, in the event of a breach revealed to respect the applicable procedures or the right of access to information;
- to assist and guide lawyers in the implementation of professional rules and the law on combating money laundering and the financing of terrorism;
- prior to any statement of suspicion, review the mandatory pre-application made by the attorney(s) to the internal controller in such a way that:
- be systematically analysed the suspicion formulated by the reporting lawyer;
- lawyers participating or participating in the suspicious transaction be informed directly by the internal controller of the possibility of the implementation of the suspicious transaction reporting procedure;
- the right to customer information is respected.
The internal controller will have free access to all lawyers in the exercise structure, as well as to all information and documents relevant to the exercise of its control.
Subject to the authorization of the organization of the exercise structure, the internal controller shall exercise its mission independently.
The internal controller shall, at least once a year, review its activity and, in particular, verify compliance on the basis of the information it has collected.
This decision will be published in the Official Journal of the French Republic.
Done in Paris, July 12, 2007.
For the National Bar Council:
The president,
P.-A. Iweins
