More often than not in the legal profession client-attorney confidentiality is what puts clients at ease. Clients feel safe and guarded knowing that they can fully trust their chosen attorney with all their personal information.
However, when it comes to the Financial Intelligence Centre Act (FICA), this confidentiality becomes contentious with many attorneys feeling uncomfortable as to what they should do if they pick up suspicious behaviour or information.
No duty of secrecy or confidentiality prevents any institution or person from complying with the obligation to file a report with the FIC. Whilst this may seem in conflict with the assumption of client-attorney confidentiality, section 37 (2) protects the common law right of legal professional privilege as between an attorney and an attorney’s client in respect of communications made in confidence between:
- The attorney and the attorney’s client for the purposes of legal advice or litigation which is pending or contemplated or which has commenced.
- A third party and an attorney for the purposes of litigation which is pending or contemplated or has commenced.
It is important to note that a reporter enjoys legal protection concerning a report submitted to the FIC and Section 38 of FICA protects persons who participate in submitting reports to the centre. No legal action, whether criminal or civil, can be instituted against any natural or legal person who complies in good faith with the reporting obligations of FICA.In addition to protection against legal liability, the FIC Act also protects the identities of those involved in making a report to the centre.
In summary a person involved in the making of a report cannot be forced to give evidence in criminal proceedings concerning such a report. However, such a person may choose to do so voluntarily. If a person elects not to testify, no evidence regarding that person’s identity is admissible as evidence in criminal proceedings.
Do you have more questions regarding the FIC Act and how it impacts the legal profession? Reach out to our compliance team compliance@docfox.co.za and they will gladly assist you.