Guatemala
Last Updated: 13/05/2009 (Anti-money laundering legislation not applicable to lawyers)
CENTRAL AUTHORITY FOR REPORTING
Special Verification Intendancy (Agency of the Superintency of Banks and Financial Groups).
OTHER ANTI-MONEY LAUNDERING REGULATOR(S)
Superintendence of Banks and Financial Groups - SIB.
ARE LAWYERS COVERED BY ANTI-MONEY LAUNDERING LEGISLATION?
Guatemala has not implemented any laws or regulations specifically covering lawyers. Lawyers are covered by anti-money laundering (AML) legislation which is applicable to all citizens, prescribing money laundering as a criminal offence. AML legislation in Guatemala distinguishes between “responsible persons” and “obligated persons”. “Responsible” provisions incorporate any person in Guatemala responsible for committing such offense.
Lawyers are subject to such provision just as any other civilian under the law of Guatemala. “Obligated persons” are the persons or entities specifically listed under the AML legislation who must fulfill any reporting obligations established under such law.
Nonetheless, in Guatemala, Lawyers are also notaries public. Notaries are considered as “obligated persons” under certain specific provisions and have the obligation to provide information as required by the Special Verification Intendancy. This disposition is not applicable to “Lawyers” per se but covers them in their role of notaries.
LIST THE LAWS REGARDING ANTI-MONEY LAUNDERING, INDICATING WHICH LAWS ARE APPLICABLE TO LAWYERS.
Please note that the associated documents are only accessible in Spanish.
ARE VISITING LAWYERS SUBJECT TO LOCAL LAWS REGARDING ANTI-MONEY LAUNDERING, AND, IF SO, TO WHAT EXTENT?
Yes. According to article 4 LMAL, foreigners are held as “responsible persons” and are thereby subject to such law. If a foreign person in Guatemala commits the crime of anti-money or asset laundering, they may be sentenced to between 6 and 20 years of imprisonment with immediate deportation to their country of origin upon completion of the penalty.
LIST ANY MONEY LAUNDERING GUIDANCE FOR LAWYERS (FOR EXAMPLE, LAW SOCIETY OR BAR ASSOCIATION GUIDELINES) CURRENTLY IN PLACE.
Money Laundering Guidelines are established under the specific laws listed above and in any other disposition or provision issued by the Superintendence of Banks of Guatemala.
No guidelines have been provided by the Bar Association of Lawyers and Public Notaries of Guatemala.
However, lawyers, when acting as Public Notaries, are obliged to provide any information required by the Intendency of Special Verification and also provide it with free access to any other sources of information (Article 18 LPRTF).
Also, lawyers are liable as “responsible persons” and subject to civil and criminal liability for committing the crime of Money or Asset Laundering.
The guidelines contained under such laws must be followed by any persons or entity handling funds and engaging in financial or securities intermediation.
The SIB also provides accessible international standards and guidelines including:
Please not that some of the associated documents can only be accessed in Spanish.
IS THE LAW SOCIETY/BAR ASSOCIATION INVOLVED IN SUPERVISING OR ENFORCING COMPLIANCE WITH ANTI-MONEY LAUNDERING REGULATIONS?
The Bar Association of Guatemala is not involved in supervising or enforcing AML regulations. Such role is executed by the SIB, the Special Verification Agency and the Public Prosecutor within the Public Ministry (when suspicion of the commission of the crime arises and must be prosecuted).
DESCRIBE CLIENT DUE DILIGENCE REQUIREMENTS, INCLUDING WHEN IT MUST BE UNDERTAKEN BY LAWYERS.
There are no specific due diligence requirements that apply specifically for lawyers. However, as previously mentioned, Notaries must cooperate and provide information as required by the Special Verification Agency.
Additionally, due to general principles of law, ethics and the judicial body’s own regulations, a lawyer must be diligent and careful whist servicing a client since they are responsible for any damages and loss suffered caused by ignorance, negligence, or carelessness regardless of intent (A. 202 LOJ).
DOES YOUR COUNTRY FOLLOW A RISK-BASED APPROACH TO CLIENT DUE DILIGENCE BY LAWYERS?
No. Lawyers are only under a duty to provide required information as requested. Risk Based Approach guidelines are aimed specifically for other persons and entities listed under the AML regulations that engage in financial and security intermediation.
ARE THERE ENHANCED DUE DILIGENCE MEASURES FOR CERTAIN TYPES OF CLIENTS, FOR EXAMPLE, POLITICALLY EXPOSED PERSONS?
No.
ARE THERE SIMPLIFIED DUE DILIGENCE MEASURES FOR CERTAIN TYPES OF CLIENTS, FOR EXAMPLE, LISTED COMPANIES?
No.
ARE LAWYERS PERMITTED TO RELY ON THIRD PARTY DUE DILIGENCE? IF YES, PLEASE DESCRIBE.
Although not specifically regulated, such an action could be considered unethical because of carelessness or breach of other ethical principles established under the Ethics Code of Lawyers and Public Notaries, which is issued by the Bar Association of Lawyers and Public Notaries of Guatemala.
WHEN IS A LAWYER UNDER AN OBLIGATION TO REPORT SUSPICIOUS TRANSACTIONS?
Lawyers, when acting as Public Notaries, are under the obligation to provide information as required by the Special Verification Intendency in accordance with article 18 LPRTF.
DOES ATTORNEY/CLIENT PRIVILEGE AND/OR DUTIES OF CONFIDENTIALITY PROVIDE A DEFENCE OR PARTIAL/TOTAL EXCEPTION TO THE REQUIREMENT TO REPORT SUSPICIOUS TRANSACTIONS?
Lawyers are subject to Attorney/Client Privilege according to article 201 c) of the Judicial Body Law of Guatemala and Chapter I item 8 of the Ethics Code of Lawyers and Notaries of Guatemala. This privilege may be invoked as a defence to the requirement to report suspicious transactions.
However, when lawyers act in their capacity as Public Notaries, they are under the obligation to provide information when required by the Special Verification Intendancy, and may not invoke such privilege.
DOES LOCAL LAW PROVIDE ANY CRIMINAL AND/OR CIVIL INDEMNITY TO A LAWYER WHO HAS REPORTED A SUSPICIOUS TRANSACTION?
According to articles 90, 91 and 92 of the Law Against Organized Crime, there are criminal indemnities for lawyers reporting suspicious transactions when acting as Public Notaries. The indemnity applies when a Public Notary commits a crime and then decides to help the Public Prosecutor in the investigation/prosecution of the case. Note that there is pecuniary liability for Public Notaries that do not cooperate with the Special Verification Intency (Article 19 LPRTF).
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?
Although not specifically regulated, such an action would be considered unethical according to the Ethics Code issued by the Bar Association of Lawyers and Notaries in Guatemala. Nevertheless, if the subsequent investigation demonstrates that the legal advice/transaction was so important that without it the crime could have not been committed, the lawyer will be charged of committing the crime as a principal offender in accordance with article 36 of the Criminal Code of Guatemala.
IS THERE A TIPPING-OFF PROHIBITION? IF YES, PLEASE DESCRIBE.
There is a tipping-off prohibition contained in article 223 of the Criminal Code of Guatemala which regulates the criminal offence of “Revelation of the Professional Secret”. A lawyer/Public Notary commits such a crime when they reveal or use a “secret” for own or third party purposes without having a “just cause” of doing such an action, causing losses for revealing or using that secret.
A secret can be defined as privileged and confidential information that the lawyer/Public Notary possesses because of his/her occupation/job/status. Such lawyer/Public Notary may be sentenced to between 6 months and 2 years of imprisonment or a fine between Q100.00 and Q1000.00.
DESCRIBE ANY RESTRICTIONS ON ACCEPTING A NEW CLIENT.
There are no restrictions of any kind. According to the Ethics Code issued by the Bar Association of Lawyers and Notaries in Guatemala, a lawyer has freedom of choice when accepting a new client.
ARE THERE ONGOING MONITORING REQUIREMENTS FOR EXISTING CLIENTS? IF YES, PLEASE DESCRIBE.
No.
DESCRIBE ANY OTHER WAYS IN WHICH LAWYERS ARE AFFECTED BY ANTI-MONEY LAUNDERING LEGISLATION.
Lawyers and Notaries, as previously described, are subject to AML Legislation. Apart from the laws and regulations already cited there are no other applicable rules.
HAVE LAWYERS IN YOUR JURISDICTION BEEN IMPLICATED IN MONEY LAUNDERING, INCLUDING ANY TYPE OF COMPLAINT, ARREST OR PROSECUTION?
Yes.
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?
Guatemala has been evaluated by the FATF in the November 2005 Post Plenary Report. There are not any findings concerning lawyers’ compliance with the FAFT recommendations nor is the subject mentioned.
Information supplied by:
Consortium Centro América Abogados – Guatemala’s Office
Mr Lionel Aguilar
Ms Desireé Matheu
Ms Ana Luisa de Gordillo
Diagonal 6 10-01 Zona
10, Centro Gerencial Las Margaritas Torre II
Oficina 1101
Guatemala City
Guatemala
General Website: www.consortiumlegal.com
General Email: guatemala@consortiumlegal.com