A report by Uncac (UN Convention against) called on Brazil to implement mechanisms against, an issue that is being resisted by the (Brazilian Bar Association).
The document provides information that was discussed in the first half of this year regarding how Brazil has implemented the guidelines of the convention, of which the country has been a signatory since 2006, in the first term of (PT).
The text recommends actions to improve the fight against corruption and has, among the main points, the mention of advocacy. Brazil received a recommendation to regulate the obligations of lawyers and other legal professionals in relation to money laundering.
In recent years, lawyers have been suspected of using offices for illegal financial transactions, including in cases related to .
Although protection of the right to defense gives lawyers the possibility of keeping relationships with clients and transactions carried out with them confidential, this shield can be used to disguise resources arising from crimes as if they were legal values.
Uncac states that law No. 9,613 (sanctioned in 1998 and updated in 2012), which is broad and could include notary offices and lawyers among those required to adopt registration and communication of operations with signs of crimes.
However, says the summary, a relevant regulation was launched only in relation to notary offices. “There is no equivalent regulation for lawyers.”
On more than one occasion, the OAB initiated discussions about drafting standards that would address the issue, but there was no progress. Currently, the body does not have debates on the topic.
When contacted, OAB Nacional stated in a note that “the protection of professional secrecy for Brazilian lawyers is similar to the protection that American and English lawyers have.”
“Without this secrecy, there is no guaranteed right to defense. The lawyer is the citizen’s professional, and this is more important than the State”, he said.
The last one occurred during the administration of (2019-2022).
On that occasion, Santa Cruz commissioned the commission of lawyers chaired by Juliano Breda to study the most appropriate model for “combating the progressive and undue criminalization of the practice of law and the legitimate receipt of fees”.
The same group was tasked with preparing a proposal for internal regulation of money laundering prevention practices.
Completed on December 3, 2020, the text defended professional secrecy, according to which lawyers are exempt from communicating to Coaf (Financial Activities Control Council) information about the provision of services to clients.
It proposed, however, that the receipt of amounts as fees to be illegally passed on to third parties, thus configuring a situation of money laundering, would trigger the professional’s disciplinary responsibility.
The draft also stated that lawyers would be exempt from communicating to the authorities information about the provision of legal services, which includes, among others, legal consultations or issuing opinions.
On the other hand, it provided, among other provisions, that lawyers or law firms acting for clients in transactions such as the purchase and sale of real estate, commercial or industrial establishments or corporate interests should communicate them to Coaf.
Taken to the plenary of the Federal Council of the Order in 2021, the proposal was defeated.
According to Breda, the counselors understood that the obligations suggested by the commission “would represent a risk to professional secrecy and the confidentiality of the client-lawyer relationship and could create a risk of the criminalization of law.”
“I didn’t think like that, I thought differently, that these proposals could even protect lawyers, because you would create a ‘standard’ of guidelines that lawyers could, acting in that way, see themselves protected from liability”, he told Sheet.
Money laundering in Brazilian law is also a cause for concern for other international entities, such as the body that serves as a global reference for the anti-laundering system, the .
In 2009, Brazil was criticized in a FATF inspection report for failing to comply with international commitments to oblige lawyers to report suspicious financial transactions to local authorities.
The international body’s guidelines say that law is among the activities and professions not directly linked to the financial world that must have rules to combat the illegal circulation of money.
