The conflict between money laundering and data protection legislations : at what point does the lawyer start incurring liability?

Abstract

This dissertation analyses the different obligations and responsibilities that the lawyer has towards his clients as an advocate and consultant. This is made by looking at the obligations of professional secrecy and data protection legislation. The dissertation also analyses the obligations of lawyers towards the state under the Anti-Money laundering legislations at EU and national Maltese law. The research question which is of importance in this dissertation is: Can there be a situation where lawyers incur liability under data protection legislation and Professional Secrecy because of the obligations incumbent on them under the Anti-Money Laundering regime? The dissertation firstly analyses the lawyer-client relationship and the obligation of the lawyer through his obligation of professional secrecy. This area also focuses on the obligations of the lawyer under the data protection legislation of the European Union, particularly the GDPR. The study then moves on to analyse the obligations imposed on lawyers by the EU Anti Money Laundering Directives and the Prevention of Money Laundering and Terrorist Financing Regulation of Malta. Emphasis is placed on the lawyer’s obligation to make suspicious transaction reports to the authorities whenever they see a suspicious activity when controlling the finances of their clients. In the fourth chapter, the author analyses the competing interests of, on the one hand, the GDPR and Professional Secrecy, and on the other the Anti-Money Laundering Directives. An intricate analysis is made by comparing the requirements imposed by each regime in order to reach the crux of the dissertation which is to analyse whether in truth, there may me a situation where the lawyer might encounter liability because of these competing interests.