Fellow lawyers: referral in white collar crime

A fellow lawyer hands us the anti-fraud, compliance and corporate criminal law part of a matter and keeps the rest. Our references include the defence of a statutory auditor. The public prosecutor summoned him before the criminal court together with the client he had audited.

Such a matter usually starts with a single document. Your client receives an invitation to a police interview, his bank account is frozen, or an internal finding points to fraud. A person questioned as a suspect has the right to confidential advice from a lawyer beforehand. He also has the right to assistance during the interview itself (Article 47bis, § 2, of the Belgian Code of Criminal Procedure). Those two rights apply only where the offence carries a custodial sentence.

The first document deserves a close reading. A written invitation sometimes sets out those rights and a short description of the facts. In that case your client is deemed to have consulted a lawyer already (Article 47bis, § 3, first paragraph). If those elements are missing, an adult suspect may have the interview postponed once.

Sometimes the law calls for a separate representative of the legal person. The prosecution then brings the same or connected charges against the legal person and against the person authorised to represent it. The competent court appoints an ad hoc representative. That is Article 2bis of the preliminary title to the Belgian Code of Criminal Procedure. The firm sets out the other clients it works for on its Dutch Voor wie page.

The accountancy professions and notaries are obliged entities in full. A lawyer is not. The Belgian anti-money laundering statute is the Act of 18 September 2017 on the prevention of money laundering and terrorist financing. Its Article 5, § 1, 23° to 27°, covers statutory auditors, accountants, tax advisers, notaries and judicial officers. Each profession answers to its own supervisory authority, and for lawyers that is the President of their Bar (Article 85, § 1).

The organisational duties are the same for each of those professions. Article 16 requires an overall risk assessment covering clients, services, the countries involved and the delivery channels. Article 8 requires policies, procedures and internal control measures proportionate to the nature and size of the practice. A member of senior management approves them. Article 9 requires one responsible person at the highest level, plus one or more people who analyse atypical transactions.

An inspection most often finds the same two duties missing. Article 10 requires a specific and independent channel for staff to report breaches confidentially and anonymously, and Article 11 requires ongoing training. Article 60 requires the identification data and the supporting documents to be kept for ten years. Article 62, § 1, requires them to be erased after that. What money laundering is, our specialists set out in an earlier piece on this site.

The penalty is administrative and it is heavy. Article 132, § 2, sets the administrative fine for the entities under 23° to 33° at a maximum of 1,250,000 euros. That ceiling may be raised to twice the profit gained or the loss avoided.

The framework also changes before long. Regulation (EU) 2024/1624 of 31 May 2024 applies from 10 July 2027. Directive (EU) 2024/1640 of the same date must be transposed by that day at the latest. Regulation (EU) 2024/1620 set up the Anti-Money Laundering Authority, seated in Frankfurt am Main.

You and we agree that per matter, before the work starts. There is no standard formula. The arrangement sets out who handles which part and who speaks to the client. It also sets out what happens once the criminal proceedings end. Raise it at the first meeting, because that choice shapes how the matter is run.

Only for a closed list of transactions, set out in Article 5, § 1, 28°, of the Act of 18 September 2017. That list covers assistance with the purchase and sale of real estate or businesses. It also covers the management of money or assets, the opening or management of accounts, and contributions for the formation of companies. It covers, finally, the formation or management of companies, trusts or foundations. Outside that list a lawyer is not an obliged entity.

To the President of his Bar, not to the Financial Intelligence Processing Unit. Article 52 of the Act of 18 September 2017 requires him to inform the President immediately. The President only checks whether the conditions of Articles 5, § 1, 28°, and 53 are met. If they are, he passes the information to the Unit immediately and unfiltered. For lawyers, the President of the Bar is also the supervisory authority.

Article 132, § 2, sets the administrative fine for the entities under 23° to 33° at a maximum of 1,250,000 euros. That ceiling may be raised to twice the profit gained or the loss avoided.

The organisational duties are the same for each of those professions. Article 60 requires the identification data and the supporting documents to be kept for ten years. Article 62, § 1, requires them to be erased after that.

When the prosecution brings the same or connected charges against both the legal person and the person authorised to represent it. Article 2bis of the preliminary title to the Belgian Code of Criminal Procedure governs that conflict of interest. The court with jurisdiction over the case against the legal person appoints the representative. It does so of its own motion or on application.