Legal professional privilege: disclosing suspicions to your MLRO
Chapter 13 of the anti-money laundering guidance for the legal sector states that section 330(9A) of the Proceeds of Crime Act 2002 “protects the privilege attaching to any disclosure made to a nominated officer for the purposes of obtaining advice about whether or not a disclosure should be made”.
Section 330(9A) does not apply if the person making the disclosure to the nominated officer intends for it to be a disclosure and not a consultation for the purposes of obtaining advice from the nominated officer.
In the former case, the information is not protected by legal professional privilege, so the nominated officer’s own reporting duty may potentially be triggered.
To help make the distinction between disclosures to the MLRO and consultations for the purposes of obtaining advice from the MLRO on whether a disclosure should be made, firms may wish to implement a 'nominated officer reporting form'.
This form could be used when a formal disclosure is intended.
Any disclosures made to the MLRO before the form is used could therefore be treated as for the purposes of obtaining advice.
This would clarify when the relevant information in the hands of the nominated officer remains privileged, removing the nominated officer's onward disclosure duty to the National Crime Agency.