Gatekeeper Regulations on Lawyers

Overview

The ABA supports reasonable and necessary domestic and international measures designed to combat money laundering and terrorist financing. However, the Association opposes legislation and regulations that would impose burdensome and intrusive gatekeeper requirements on lawyers, including bills that would subject the legal profession to key anti-money laundering compliance provisions of the Bank Secrecy Act. If adopted, these measures would undermine the attorney-client privilege, the confidential lawyer-client relationship, and traditional state court regulation of the legal profession, while also imposing excessive new federal regulations on lawyers engaged in the practice of law.

Status

Congress has been considering several gatekeeper bills, including the "TITLE Act" (S. 1454, sponsored by Senator Sheldon Whitehouse, (D-RI)), the "Corporate Transparency Act" (S. 1717, sponsored by Senator Ron Wyden, (D-OR), and H.R. 3089, sponsored by Representative Carolyn Maloney, (D-NY)), and the original version of the "Counter Terrorism and Illicit Finance Act" (H.R. 6068 sponsored by Representatives Steve Pearce (R-NM) and Blaine Luetkemeyer (R-MO)). Each of these measures would require states, small businesses, and those businesses' lawyers to gather and maintain extensive "beneficial ownership" information on the new corporations and limited liability companies they help create and make the information available to federal law enforcement authorities. The TITLE Act and the Corporate Transparency Act also contain provisions that would regulate many lawyers and law firms as “formation agents” (and hence, “financial institutions”) under the Bank Secrecy Act and subject them to the Act’s anti-money laundering (AML) and suspicious activity reporting (SAR) requirements when they help clients establish new companies.

S. 1454 was referred to the Senate Judiciary Committee, S. 1717 was referred to the Senate Banking, Housing, and Urban Affairs Committee, and H.R. 3089 and H.R. 6068 were referred to the House Financial Services Committee.

On November 29, 2017 the House Financial Services Subcommittees on Financial Institutions & Consumer Credit and Terrorism & Illicit Finance held a joint hearing titled "Legislative Proposals to Counter Terrorism and Illicit Finance." Prior to the hearing, the ABA submitted a letter to the full committee expressing serious concerns regarding the beneficial ownership provisions in the draft "Counter Terrorism and Illicit Finance Act." On February 6, 2018, the Senate Judiciary Committee held a similar hearing titled "Beneficial Ownership: Fighting Illicit International Financial Networks Through Transparency", and prior to that hearing the ABA submitted a separate letter expressing similar concerns regarding S. 1454. Both letters explain the ABA's specific concerns regarding the two bills and why the ABA believes that other tools developed by the federal government, financial institutions, and the legal profession are more effective and practical in fighting money laundering and terrorist financing.

In response to the concerns raised by the ABA, the U.S. Chamber of Commerce, and other entities, the sponsors of the draft Counter Terrorism and Illicit Finance Act removed the original beneficial ownership provisions and reintroduced the revised bill on June 12, 2018 as H.R. 6068. Although the House Financial Services Committee planned to markup the the revised bill on June 14, the marukup was postponed and has not yet been rescheduled.

In addition to these legislative proposals, the ABA also expressed concerns over an earlier proposal by the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) to establish new customer due diligence requirements for financial institutions. In its initial May 4, 2012 comment letter to FinCEN, the ABA objected to language in the agency’s Advance Notice of Proposed Rulemaking that would have required law firms to disclose confidential information about their clients’ identities and beneficial ownership whenever they receive advance legal fees from their clients and deposit those funds in the firms’ trust accounts or if they establish new bank accounts on behalf of clients. The ABA comments also expressed concerns that the FinCEN proposal could have imposed unreasonable and excessive burdens on many lawyers and law firms with client trust accounts and could have undermined both the confidential lawyer-client relationship and traditional state court regulation of lawyers.

On October 3, 2014, the ABA submitted a second comment letter to FinCEN in response to the agency’s updated customer due diligence proposal. In those comments, the ABA urged FinCEN to include language in its final rule clarifying that when lawyers or law firms open escrow or client trust accounts on behalf of their clients, they need only disclose their own beneficial ownership information, not the identity or beneficial ownership of their clients for whom the accounts were established. Subsequently, FinCEN issued its final rule on May 11, 2016 that includes the ABA-proposed language designed to protect client confidentiality. The new rule became fully effective and binding on covered financial institutions on May 11, 2018.

On December 1, 2016, the intergovernmental regulatory body known as the Financial Action Task Force (FATF) released its Mutual Evaluation Report on the United States’ AML and combatting the financing of terrorism (CFT) measures. The FATF report took the position that although the AML and CFT regulatory framework in the U.S. is “well developed and robust,” the framework has some significant gaps, including the lack of strict federal AML and SAR regulations on lawyers, accountants, and other non-financial businesses and professions. The recent FATF report—combined with recent media stories alleging that certain law firm client trust accounts may have been used to launder money and criticizing the concept of lawyer-client confidentiality—has created additional momentum for several of the gatekeeper proposals in the 115th Congress.

Key Points

The ABA opposes gatekeeper legislation like S. 1454, S. 1717, H.R. 3089, and other similar measures because:

  • The legislation would undermine the attorney-client privilege, the confidential lawyer-client relationship, and traditional state court regulation of the legal profession. Under these bills, lawyers and law firms that help small business clients to form new companies would be considered “formation agents” (and hence a new category of “financial institution”) under the Bank Secrecy Act and would be subject to the strict AML and SAR requirements of the Act. These SAR requirements could compel lawyers to disclose certain confidential client information to government officials, a result plainly inconsistent with their ethical duties and obligations established by the state supreme courts that license, regulate and discipline lawyers. Requiring lawyers to report such information to the government—under penalty of harsh criminal sanctions—would also seriously undermine the attorney-client privilege, the confidential lawyer-client relationship, and the right to effective counsel by discouraging full and candid communications between clients and their lawyers.
  • The bills would also impose burdensome, costly, and unworkable beneficial ownership reporting requirements on small businesses, their lawyers, and states. Millions of small businesses would be required to disclose detailed beneficial ownership information to FinCEN or state authorities and then continuously update that information, subject to harsh civil and criminal penalties for noncompliance. FinCEN or the states would then be required to maintain this information in a massive database and disclose it to federal, state, and foreign government agencies and financial institutions upon request. Many lawyers and law firms that help clients to form companies would be deemed to be “formation agents” or "applicants" under the bills and would also be subject to these requirements. This new federal regulatory regime would be very costly and cannot be justified, and the bills' vague and unworkable definition of “beneficial ownership” would sow confusion into the company formation process. The bills also would not be effective in fighting money laundering and terrorist financing.
  • The burdensome and intrusive new reporting requirements in the legislation are unnecessary because the federal government, financial institutions, and the legal profession have developed other more effective tools. The Internal Revenue Service (IRS) and financial institutions already collect useful entity-related information needed to fight money laundering and terrorist financing—through IRS Form SS-4 and FinCEN's recent Customer Due Diligence Rule, respectively—and that information is available to law enforcement authorities. The ABA also developed and is actively promoting the “Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing,” which is designed to help lawyers fight these problems by taking prudent, proportional, risk-based steps tailored to the individual situation rather than the burdensome and costly rules-based approach of the proposed legislation. 

ABA Policy

Although the ABA supports reasonable and balanced initiatives to combat money laundering and terrorist financing, the ABA opposes any law or regulation that would compel lawyers to disclose confidential client information to government officials or otherwise compromise the attorney-client privilege, the lawyer-client relationship, traditional state court regulation of lawyers, or the independence of the bar. This policy, crafted by the Task Force on Gatekeeper Regulation and the Profession, was first adopted by the ABA in 2003 and later reinforced and expanded in 2008 and 2010.

Updated July 2018

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