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Sanctions - what do they mean for law firms?

10 September 2008

The UK government imposes financial restrictions on persons and entities as part of its domestic counter-terrorism regime, as well as those persons proscribed by the United Nations and/or European Union.

This regime restricts:

  • receiving payment from persons on the sanctions list
  • dealing with their economic resources and
  • even legitimate payments to those persons

In a 2008 survey conducted by the Law Society, 48 per cent of respondents said that they did not check their clients against these sanctions lists.

Despite the Law Society providing extensive training and e-alerts on the topic, HM Treasury is still finding smaller law firms and sole practitioners acting for sanctioned persons without a licence because they have failed to check the list.

As a law firm, you need to realise that the sanctions regime applies to you. You must consider your client demographic and the risks of breaching the sanctions regime through the transactions and retainers they undertake.

While anti-money laundering systems will assist in compliance, they will not on their own ensure that all sanctions risks are identified and mitigated.

The legislation

Under the Al Qaida and Taliban (Asset-Freezing) Regulations 2010 and the Terrorism (United Nations Measures) Order 2009, it is a criminal offence for any natural or legal person to:

  • deal with the funds of designated persons or
  • make funds and economic resources available, directly or indirectly for the benefit of designated persons.

Under the Terrorism (United Nations Measures) Order 2009, you must not make financial services available, directly or indirectly to, or for the benefit of, designated persons.

Finally, you must not knowingly and intentionally participate in activities that would directly or indirectly circumvent the financial restrictions or enable, or facilitate the commission of any of the above offences.

Who is on the list?

HM Treasury issues a consolidated list of all persons and entities that are subject to sanctions which are effective in the UK.
Read the consolidated list

There are a number of regimes to which financial sanctions have also been applied, including:

  • Al Qaida and the Taliban
  • Belarus
  • Burma/Myanmar
  • Democratic Republic of Congo
  • Persons indicted by the International Criminal Tribunal for the former Yugoslavia
  • Iran
  • North Korea
  • Zimbabwe

Assessing your risk profile

When assessing your firm's anti-money laundering risk profile, you should consider your likely exposure to clients on the sanctions lists.

Due to the wide range of persons and entities listed, it is difficult to categorise the clients that may need to be checked simply by their nationality or country of residence. There are UK nationals and UK residents on the list, so you may still be at risk even if you only act for local clients.

The regimes list is a useful indicator in assessing risk, but there may be some retainers where it is not readily apparent that a person or entity may have some connection to the relevant regime.

You cannot limit the risk assessment to the regulated sector, as the payment of personal injuries settlements and property settlements following a divorce are key situations where HM Treasury are finding solicitors in breach of the sanctions regime. Further, the use of legal aid payments for the benefit of a person on the list will also require a licence under the sanctions regime.

Checking individual clients

You may apply a risk-based approach to setting up a system which checks your clients against the sanctions lists.

Some key factors which may increase the risk of a person being on the sanctions list and so increase the reason for checking the list include:

  • clients or transactions with links to jurisdictions subject to sanctions, even if the clients are based locally
  • clients or transactions involving senior political persons from jurisdictions subject to sanctions
  • clients or transactions involving complex corporate structures in jurisdictions with high terrorist financing risks
  • clients who seem unable to receive funds or send funds from a bank account in their name, for no good reason

You can check directly against the list, by simply pressing Ctrl+F to undertake an in-page search. This may be appropriate on a case-by-case basis where your firm has a low general risk of working for clients on the sanctions list, but individual clients have higher risk indicators.

A number of e-verifiers also incorporate this list into the databases against which they check for identity information. Use of one of these services may be appropriate for firms with higher risks of dealing with clients on the sanctions list.

Where there are higher risk indicators, you should also have processes which enable you to ascertain whether key beneficial owners or the intended recipient of funds from a transaction you are undertaking are subject to the restrictions.

Obtaining a licence

You can still act for a person who is on the sanctions list, but you can only do so with a licence from the HM Treasury Asset Freezing Unit. You may also discuss the person's sanctioned status and the implications with your client without being concerned about tipping off, as the sanctions list is public information.

You must:

  • suspend the transaction pending the advice from the Asset Freezing Unit
  • contact the Asset Freezing Unit to seek a licence to deal with the funds, and
  • consider whether you have a suspicion of money laundering or terrorist financing which requires a report to the Serious Organised Crime Agency (SOCA) (now known as the National Crime Agency (NCA)).

You must not:

  • return funds or deal with the resources to the designated person without the approval of the Asset Freezing Unit.

The Asset Freezing Unit has the power to grant licences exempting certain transactions from the financial restrictions. Requests are considered on a case-by-case basis, to ensure that there is no risk of funds being diverted to terrorism.

They have also issued general licences which govern certain situations, such as, the use of legal aid payments.
Read more information on the Asset Freezing Unit and obtaining a licence

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