Last Updated: 11/01/2010
CENTRAL AUTHORITY FOR REPORTING.
Tunisian Financial Analysis Committee (CTAF).
OTHER ANTI-MONEY LAUNDERING REGULATOR(S).
ARE LAWYERS COVERED BY ANTI-MONEY LAUNDERING LEGISLATION?
Yes. The law defines designated non-financial businesses and professionals as any person who, in the course of his/her profession, carries out, controls or advises on financial operations or transactions involving the transfer of funds.
Since most lawyers complete transactions of this nature, they are covered by the AML legislation.
LIST THE LAWS REGARDING ANTI-MONEY LAUNDERING, INDICATING WHICH LAWS ARE APPLICABLE TO LAWYERS.
ARE VISITING LAWYERS SUBJECT TO LOCAL LAWS REGARDING ANTI-MONEY LAUNDERING, AND, IF SO, TO WHAT EXTENT?
Unless they are practicing law in Tunisia, visiting lawyers are not subject to local laws.
LIST OF MONEY LAUNDERING GUIDELINES FOR LAWYERS (FOR EXAMPLE, LAW SOCIETY OR BAR ASSOCIATION GUIDELINES) CURRENTLY IN PLACE.
IS THE LAW SOCIETY/BAR ASSOCIATION INVOLVED IN SUPERVISING OR ENFORCING COMPLIANCE WITH ANTI-MONEY LAUNDERING REGULATIONS?
Lawyers are liable for disciplinary sanctions from the Bar Association for neglecting their duties, or for committing any act that is damaging to the honour or reputation of the legal profession.
This system, therefore, subjects lawyers to possible disciplinary supervision if they do not follow the AML/CFT obligations.
DESCRIBE CLIENT DUE DILIGENCE REQUIREMENTS, INCLUDING WHEN IT MUST BE UNDERTAKEN BY LAWYERS.
Any person, including any lawyer, who, in the course of his/her profession carries out, controls or advises on financial operations or transactions leading to a flow of capital must observe the client due diligence requirements sent out in Law 2003-75.
Article 74 of Law 2003-75 states that lawyers shall:
Check, through the official documents, and other documents from reliable and independent sources, the identity of their permanent or occasional clients and record all the necessary data likely to identify them;
Check, through the official documents, and other documents from reliable and independent sources:
- The identity of the beneficiary of the operation or transaction and the credibility of the person acting on its behalf;
- The constitution (memorandum and articles of association) of the legal person, its legal form, its registered office, the distribution of its authorized capital and the identity of its managers and those who have the capacity to bind it. The lawyer must also take reasonable steps to identify the natural persons with controlling interests.
Obtain information on the subject and nature of the business relationship;
Obtain, the identity of the client whenever the instructions received are from a third party. The lawyer should also ensure that the third party is subjected to AML/CFT regulations and that the third party took the necessary steps to comply with these regulations and is capable of providing, as soon as possible, copies of the identification of its client and other related documents with the obligation for them to assume in all the cases, the responsibility for the client identification.
These measures should taken by lawyers when:
A business relationship is established;
They carry out occasional transactions and value is equal or higher than an amount which will be fixed by an order of the Minister in charge of finance or in form of wire transfers;
There is a suspicion of money laundering or terrorism financing;
There are doubts concerning the veracity or relevance of the client identification data previously obtained.
If lawyers fail to carry out the aforementioned checks or if the information is insufficient or obviously fictitious, then they shall abstain from carrying out the operation or transaction and consider whether a suspicious report should be made.
Update the data relating to the identity of their clients; exercise a continuous due diligence towards them throughout the business relationship and carefully examine the operations and transactions carried out by their clients, in order to ensure that they are consistent with the data which they have concerning these clients, taking into account the nature of their activities, the risks that they incur and if necessary the origin of the funds;
Ensure that their subsidiary companies and the companies of which they hold the majority of the authorized capital and located abroad apply due diligence measures relating to the repression of money laundering and the fight against terrorism financing and to inform the controlling authorities when the regulations in the countries in which they are established do not allow to apply these measures;
Have adequate systems of risk management in the event of relation with persons having exercised or exercise high-level public functions in a foreign country, or their relatives or persons having relations with them, to obtain the authorization of the manager of the legal person before establishing or continuing a business relationship with them, to ensure a reinforced and continuous monitoring of this relation and to take reasonable measures to identify their funds origin;
When they establish relations of cross-border banking correspondent and other similar relationships,
i. Sufficiently collect information on the cross-border correspondent in order to know the nature of his/her activities and to assess, on the basis of available source of information the reputation and efficacy of the system control to which he/she is submitted and to check if he/she was the subject of an investigation or measure of the controlling authority concerning the money laundering or the terrorism financing;
ii. Obtain the authorization of the manager of the legal person before establishing relations with foreign correspondent and to set in writing the respective obligations of the two parties.
Pay particular attention to their business relationships with persons residing in countries which do not apply or apply in an insufficient way the international standards as regards fight against money laundering and terrorism financing;
Pay a particular attention to the risks of money laundering and terrorism financing associated to the use of new technologies and to take, if necessary, supplementary measures in order to avoid them; and
Set up plans for risk management related to the business relationships which do not imply the physical presence of the parties.
DOES YOUR COUNTRY FOLLOW A RISK-BASED APPROACH TO CLIENT DUE DILIGENCE BY LAWYERS?
ARE THERE ENHANCED DUE DILIGENCE MEASURES FOR CERTAIN TYPES OF CLIENTS, FOR EXAMPLE, POLITICALLY EXPOSED PERSONS?
An adequate system of risk management shall be put in place, in the event of relation with persons having exercised or exercise high-level public functions in a foreign country, or their relatives or persons having relations with them, to obtain the authorization of the manager of the legal person before establishing or continuing a business relationship with them, to ensure a reinforced and continuous monitoring of this relation and to take reasonable measures to identify their funds origin.
ARE THERE SIMPLIFIED DUE DILIGENCE MEASURES FOR CERTAIN TYPES OF CLIENTS, FOR EXAMPLE, LISTED COMPANIES?
ARE LAWYERS PERMITTED TO RELY ON THIRD PARTY DUE DILIGENCE? IF YES, PLEASE DESCRIBE.
In the event of recourse to a third party, lawyers shall obtain the necessary information likely to identify the client and to ensure that the third party is subjected to a regulation and a monitoring relating to the repression of money laundering and the fight against the terrorism financing.
Lawyers must also ensure that the third party complied with the AML/CFT regulations and is capable of providing, as soon as possible, copies of the identification data of his client and other related documents. However, lawyers are in all the cases responsible for the client identification.
WHEN IS A LAWYER UNDER AN OBLIGATION TO REPORT SUSPICIOUS TRANSACTIONS?
Lawyers shall without delay submit to the CTAF a written declaration on any suspicious operation or transaction likely to be directly or indirectly linked to illegal acts or to the financing of persons, organizations or activities in connection with terrorism infringements, as well as any attempt to accomplish the aforesaid operations or transactions.
The obligation of reporting also applies, even after the realization of the operation or transaction, when new information is likely to link the aforementioned operation or transaction directly or indirectly to illegal acts or to the financing of persons, organizations or activities in connection with terrorism infringements.
DOES ATTORNEY/CLIENT PRIVILEGE AND/OR DUTIES OF CONFIDENTIALITY PROVIDE A DEFENCE OR PARTIAL/TOTAL EXCEPTION TO THE REQUIREMENT TO REPORT SUSPICIOUS TRANSACTIONS?
DOES LOCAL LAW PROVIDE ANY CRIMINAL AND/OR CIVIL INDEMNITY TO A LAWYER WHO HAS REPORTED A SUSPICIOUS TRANSACTION?
No, provided that the reporting is made in good faith.
ONCE A SUSPICIOUS TRANSACTION REPORT HAS BEEN FILED, IS A LAWYER ALLOWED TO PROCEED WITH THE LEGAL ADVICE/TRANSACTION, AND, IF SO, MUST CONSENT FROM AUTHORITIES BE OBTAINED FIRST?
Once a report is filed, the lawyer may proceed with the transaction without authorisation.
IS THERE A TIPPING-OFF PROHIBITION? IF YES, PLEASE DESCRIBE.
Yes, the law prohibits tipping-off.
DESCRIBE ANY RESTRICTIONS ON ACCEPTING A NEW CLIENT.
Lawyers are under no client due diligence requirements prior to accepting new clients, because a financial transaction has not yet taken place.
ARE THERE ONGOING MONITORING REQUIREMENTS FOR EXISTING CLIENTS? IF YES, PLEASE DESCRIBE.
Lawyers shall update the data relating to the identity of their clients, exercise a continuous due diligence towards them throughout the business relationship and carefully examine the operations and transactions carried out by their clients, in order to ensure that they are consistent with the data which they have concerning these clients, taking into account the nature of their activities, the risks that they incur and if necessary the origin of their funds.
DESCRIBE ANY OTHER WAYS IN WHICH LAWYERS ARE AFFECTED BY ANTI-MONEY LAUNDERING LEGISLATION.
No information available.
HAVE LAWYERS IN YOUR JURISDICTION BEEN IMPLICATED IN MONEY LAUNDERING, INCLUDING ANY TYPE OF COMPLAINT, ARREST OR PROSECUTION?
No information available.
HAS THE FINANCIAL ACTION TASK FORCE (FATF) CONDUCTED A MUTUAL EVALUATION OF THIS COUNTRY, AND, IF SO, WHAT WERE THE FINDINGS CONCERNING LAWYERS’ COMPLIANCE WITH THE FATF 40+9 RECOMMENDATIONS?
The World Bank prepared a mutual evaluation report on Tunisia, which was adopted by the MENAFATF, an associate member of the FATF, on 3 April 2007.
The report found that although Tunisia has made great progress in implementing the FATF 40+9 recommendations and introducing AML/CFT legislation, the regulatory framework is made less effective by the ambiguous definition and rules surrounding designated non-financial businesses and professionals, especially regarding lawyers, and the high threshold for criminal money laundering liability.
A full copy of the MENAFATF report can be found here.
Information supplied by:
Attorney at Law
19, Avenue Alain Savary
1002 – Tunis
+ (216) 71 89 42 45 (Direct Dial)
+ (216) 22 39 22 22 (Mobile)
+ (33) 6 25 78 37 56 (Mobile)