Thursday, September 12, 2013
Kevin L. Shepherd (Venable LLP) recently published an article entitled, Ethically Speaking . . . – Just What Are My Obligations Under the Gatekeeper Initiative?, 27 Prob. & Prop. 43 (September/October 2013). Provided below is the introduction to his article:
Client due diligence is not a novel concept. Referred to as “CDD,” most lawyers undertake CDD to confirm clients’ ability to pay fees charged by their lawyers and to determine the absence of ethical conflicts of interest. But should lawyers undertake or, more precisely, must lawyers be required to undertake a risk-based analysis to determine whether their clients present a risk of money laundering or terrorist financing?
This is not an academic question. On May 23, 2013, the ABA Standing Committee on Ethics and Professional Responsibility (“ABA Ethics Committee”) issued a formal opinion discussing a lawyer’s ethical obligations to fight money laundering and terrorist financing, including the interaction of the Model Rules of Professional Conduct (“Model Rules”) and the ABA’s Voluntary Good Practices Guidance to Detect and Combat Money Laundering and Terrorist Financing (“Good Practices Guidance”). This article will discuss the domestic and international backstory that gave rise to the opinion, analyze the opinion, and suggest how practitioners can heed the important advice given in the opinion.