The case of the General Legal Council and another (appellants) v The Jamaican Bar Association (JBA)(Respondent) (Jamaica) before the UK’s Judicial Committee of the Privy Council is wending its way to final conclusion.

This case flows from the objection of the Jamaican Bar Association to certain orders, such as the Financial Investigations Division (Designated Non-Financial Institution) (Attorneys-at-law) Order, 2014, which would bring Jamaican attorneys-at-law into scope for the purposes of the Proceeds of Crime Act (POCA).

Similar orders have already come into force for specified local professionals, often referred to as gatekeepers in the anti-money laundering policy lexicon, namely real estate dealers, public accountants, gaming machine operators, and casino operators.

While the initial 2014 objection from the JBA pertained to preliminary concerns with the legislation, the nub of their current contention is that the Jamaican statutory regime to combat money laundering, as it applies to attorneys-at-law, is unconstitutional. Further, they argue that, as it is, the regime contravenes the Charter of Fundamental Rights and Freedoms and the legal profession relies on uniquely inherent privileges of confidentiality that are different from any privileges that other gatekeepers could reasonably assert.

It should be noted that the order designating attorneys-at-law is not all-encompassing. Rather, the order applies to attorneys who carry out specifically circumscribed activities on behalf of any client ­ relating to (a) purchasing or selling real estate; (b) managing money, securities, or other assets; (c) managing bank accounts or savings accounts of any kind or securities accounts; (d) organising contributions for the creation, operation, or management of companies; (e) creating, operating, or managing a legal person or legal arrangement (such as a trust or settlement); or (f) purchasing or selling a business entity. The order, on the face of it, does not extend itself to other areas of lawyering beyond those that are specified.

Even though the outcome of this case will turn on its own hearings concluded at November 30, 2022, a keen reading of the November 17, 2022 judgement given by the Privy Council in the case of Bobette Smalling (appellant) v Dawn Satterswaite and others (respondents) (Jamaica) can be instructive, if not a harbinger of the ruling to come. While the issue in the judgement is not the same as the issue in the case brought by the JBA as respondents, there are several relevant matters that warrant some attention.

The settled judgement recites matters of fact that relate to the criminal conduct of an attorney-at-law under POCA. In essence, the judgement upheld the prosecution and conviction of the attorney’s conduct which would violate elements pertaining to the Financial Investigations Division (Designated Non-Financial Institution) (Attorneys-at-law) Order, 2014, POCA, and Jamaica’s anti-money laundering regime. Some highlighted facts from the judgement are as follows:

1) The attorney (respondent), in acting for her client who was convicted of money laundering and for which there existed an extensive public record of his numerous arrests, should have been aware of these material facts at the commencement and in the continuing conduct of her representations of her client. The attorney should not have been wilfully blind to these matters, which would have come to light in a know your customer (KYC) and an enhanced due diligence (EDD) exercise, steps with which attorneys would be obliged to comply per the regime that is part and parcel of the extant case before the Privy Council. In other words, if the case before the Privy Council is settled in favour of the appellants, these same steps would become obligatory on Jamaican attorneys-at-law.

2) The attorney conducted 10 sham transactions using fictitious names and addresses in order to conceal her client’s criminal property.

3) The attorney collected rent for her client’s criminal property by accepting payment directly into a bank account in her name.

4) In acting as vendor’s attorney for her client’s criminal properties, three of them were purportedly sold to the same “overseas person”, even as the signatures on two of the three instruments of transfer appear to be inconsistent, supporting the uncontested assertion that these sales were a sham to conceal criminal property.

5) The attorney did not challenge the allegation that she was involved in 29 property transactions, which were funded by cash generated by her convicted drug trafficker client and for which she sought to conceal the ownership of the properties under the device of registering the properties in the names of relatives of her client.

6) The attorney was instrumental in the incorporation and the subsequent sale of companies for her convicted client.

7) The attorney, together with others, were charged on December 17, 2013 with several counts of money laundering, including charges related to the attorney’s role in the acquisition, disposal, and management of assets derived from her client’s drug-dealing activity.

8)The attorney remained in control of criminal property by virtue of being a joint holder of an investment account into which cash proceeds of alleged drug trafficking were deposited. Further, it was uncontested that funds from the investment account were transferred to joint bank accounts held by the attorney, which the appellant — the law enforcement officer assigned to the Major Organized Crime and Anti-Corruption Agency (MOCA) — alleged was the primary conveyancing account used by the attorney to conduct business for her client, a convicted drug trafficker.

All the material and unchallenged facts of the Bobette Smalling (Appellant) v Dawn Satterswaite and others (Respondents) (Jamaica) case would constitute criminal offences by attorneys if the Privy Council rules that the Jamaican anti-money laundering regime is not unconstitutional and, including the relevant orders, is binding on attorneys.

Under Jamaica’s anti-money laundering regime, attorneys would be obliged in specified circumstances to undertake specific due diligence in relation to client transactions in order to support the national security and public policy aims of detecting, preventing, and reporting money laundering activities and crimes.

While objections similar to those raised by the JBA remain open in other English common-law jurisdictions, most jurisdictions have settled case law that supports attorneys being in scope of national and global anti-money laundering regimes. Even in the Unites States, with its unique legal and criminal codes, there is a gathering set of rulings which, at least, are denying safe harbour to attorneys who transact with and for clients who are engaged in criminal offences such as money laundering. Case in point is the Supreme Court’s decision in Caplin & Drysdale [v United States, 491 US 617 (1989)], which places defence counsel on notice that the State may forfeit monies paid to counsel as attorney’s fees if derived from tainted funds as there is no shield to statutory forfeiture of all criminal proceeds.

As officers of the court our Jamaican attorneys would not conscientiously argue in support of special privileges that would improperly enure to the benefit of criminals. It is their argument, however, that the current anti-money laundering regime is unconstitutional and that the prohibitions spelt out in the Financial Investigations Division (Designated Non-Financial Institution) (Attorneys-at-law) Order, 2014 should not be binding on them.

While there is no obligation on the JBA as respondents to craft an alternative regime on behalf of the Government of Jamaica were they to be victorious with their pleadings, it would not be an unreasonable expectation for civil society to demand that they outline the key ingredients of a regime that is responsive to the invidious crime of money laundering and which would be acceptable to the profession.

christopherjmpryce@yahoo.com