Responding to a financial crime investigation

Increasingly, law enforcement agencies in England and Wales are seeking to use their powers to recover ill-gotten gains from criminals. At times this may mean that they will seek access to files held by solicitors.

Sometime the firm will have made a suspicious activity report about the client or another person, or acted for an innocent party in a transaction in which law enforcement officers are now interested. Other times law enforcement agencies may have extra information about your client, meaning what was a normal looking transaction now does not seem so innocent.

Whatever the reason for law enforcement interest in the solicitor’s files, being caught up in a financial investigation can be challenging and stressful, especially for firms whose day to day operations do not normally involve criminal law.

Equally, law enforcement officers may not have had a lot of experience with requesting documents from a solicitor and may be unsure of the exact processes to follow or how those processes work in practice.

The Law Society’s new practice note aims to help solicitors balance their obligations to the court and to upholding the rule of law, with their obligations of confidentiality.

Key topics covered in the practice note include:

Confidentiality and legal professional privilege: what does it cover, what does it not cover, how can it be lost, how do you resolve disputes and who bears the cost.
Talking to law enforcement agencies: pre-order enquiries, volunteering opinions about client conduct and providing witness statements.
Talking to others: getting advice from the Law Society and the SRA, taking legal advice and talking to your professional indemnity insurer.
Talking to clients: who should talk to clients about a notice or order, what can be said, who should provide them with legal advice, and can you charge them for complying with an order.
Complying with notices and orders: the main features of the key orders used in financial crime investigations, who can issue them, time frames for compliance and how can you challenge them.
Search warrants: how should you and your staff conduct yourself, what are your rights, and what issues do you need to consider for the continued running of your office.

The practice note is not a substitute for specialist legal advice. For complex matters or where the law firms is themselves the subject of suspicion from law enforcement officers, specialist legal advice will be needed.

However, the practice note highlights the main questions you should ask and issues you should consider, while provided practical pointers on how to comply and where to get more information.

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March 25, 2013 < Back