15 déc. 2012

Will your lawyer accuse you of money laundering behind your back? Michaud, 12323/11


The EU legislated three directives (nos. 91/308/CEE, 2001/97/CE, 2005/60/CE) requiring attorneys to accuse their clients on a suspicion of money laundering without informing them about this (§§ 9-10). The French law requires your attorney to observe you permanently and denounce every suspicion (§ 13). On 06/12/2012 the European Court of Human Rights found this compatible with the right to private correspondence with an attorney (Article 8 of the European Convention of Human Rights).

French tax attorney Patrick Michaud tried to prove contrary. He argued that the notion of “suspect” was not defined clearly (§ 59). The Court replied that it is impossible to arrive to “absolute certainty”, since this would produce “excessive rigidity”, and that the concepts must be “more or less vagues” (§ 96). The ECtHR continued that it had already been recognised in case law that sometimes the attorney’s freedom of expression is more important than professional secret (§ 123).

The attorney argued that the function of counselling in business transaction and defending before tribunals could not be easily divided (§§ 59, 117.2), but it didn’t work. The ECtHR replied that the duty to accuse is strictly limited to business transactions that are clearly defined (§ 127), and that there is a filter of the Bar (§ 129).

In 2010, French attorneys 20 252 times accused their clients but only in 404 cases the clients became prisoners at the bar. Mr Michaud says that this means that the system is not efficient, and waists time that could be invested in fighting crime (§ 65). The Court replies that according to the intergovernmental body Financial Action Task Force it is good that the French attorneys were among the best in the World in accusing their clients behind the back (§ 125).

Mr Michaud presented an analysis of the situation in Italy, Estonia, Belgium, Netherlands, Ireland, the USA and Canada (§ 68). Do not choose France.

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