Client due diligence during Covid, and rights for jurors: your letters to the editor
Lawyers must speak up on climate crisis
As a member of Lawyers for Extinction Rebellion, I was interested in the Gazette coverage of our recent protests aimed at the Law Society, SRA, Bar Council and BSB. I have been concerned about the climate and ecological crisis for 15 years. In that time, I have come to realise that western legal systems legitimise and facilitate the destruction of our planet, in service of our insanely destructive economic system.
In the Gazette coverage, there is little sense that we are actually facing a climate and ecological emergency. By emergency, I mean – our house is on fire. I mean deep, interconnected planetary tragedy. Let that sink in. There is still the sense that we have time to debate this problem, that it is not the remit of legal institutions and that they should not be taking positions, such as declaring a climate and ecological emergency – as Jonathan Goldsmith argues in his article of 1 September 2020. Ensuring a healthy planet Earth for all her inhabitants is everyone’s remit and every institution’s sacred duty.
Goldsmith also argues that the Legal Sustainability Alliance, of which the Law Society is a member, is proof of the Society taking some action. The alliance is not addressing the emergency. Like the suffragettes, we need deeds, not words. The only thing that matters is whether we and future generations will have peace, clean air, clean water, a healthy ecosystem and a stable climate. After 50 years of environmental law, by almost every measure things are getting worse.
The legal profession is largely silent on the climate and ecological emergency.
The climate and ecological crisis must be addressed alongside the transformation to a racially just society. As the UN Special Rapporteur on Slavery noted in September 2019, the climate crisis will force more people into slavery, most of them women and children. There are already 40 million people in slavery globally, most of them people from the Global South and people of colour.
Client due diligence amid Covid restrictions
According to The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, law firms are obliged to formulate and keep up-to-date risk assessments to evaluate the risk of money laundering and terrorist financing to which their firm may be subject.
In following the regulations, law firms must conduct client due diligence (CDD) checks by identifying and verifying their clients. This involves checking proof of ID and proof of address, with documents being certified as ‘true and accurate’ by a regulated professional.
Despite, overall, effective CDD being used in the legal industry, criminals always find new and inventive ways to use law firms to launder money. Covid-19 has increased these risks. An example is the property market, which has long been noted as a high-risk industry. But, since the Covid outbreak, property has been sold and let without physical viewings or with face masks worn during viewings, and without personal contact between client and solicitor.
Moreover, since lockdown, more businesses are beginning to sell hand sanitizer and PPE with the demand for these products increasing. Production is often sourced in higher-risk jurisdictions. Also, it is apparent that companies which do not usually sell this type of product are branching out, making a change to their usual business activity. Such a change falls under the ‘ongoing monitoring’ requirement and CDD must be updated. A firm dealing with such cases would subsequently be exposed to these higher risks, perhaps without realising, calling for enhanced due diligence.
Most contact with clients is now virtual and this seems unlikely to change in the foreseeable future. This poses the question: how do firms get to really ‘know’ who their clients are, post-lockdown?
Due to the new social distancing rules, new norms are being introduced, such as more lawyers working from home and people having to wear face coverings inside establishments, meaning face-to-face meetings between clients and solicitors are becoming rarer.
In light of this, individuals are struggling to obtain certifications of their CDD documents through the conventional channels, which in turn has opened the doors to potential deception. Clients, more so than in recent years, have the opportunity to hide their true identity, resulting in increased prospects of identity fraud. There has been a noticeable change in the risk environment and the current, internal risk assessment policies used by many law firms may need to be adapted to remain effective.
Our new ‘normal’ may involve never meeting some clients and all communication being remote and virtual. Until then, there may be clients coming to the office wearing face coverings. In these situations, firms should still be satisfied that the person is whom they understand them to be.
However, where a firm is unable to physically verify clients’ CDD documents, they may consider whether an externally regulated professional is able to do so, such as another solicitor or accountant who has previously met the client.
Alternatively, the client’s CDD documents may be received by post or copies via email. A video call can then be arranged with the client who will present their original documents during the call. The documents can then be certified as a true likeness.
The time for a single, ‘one-size-fits-all’ CDD policy has likely passed and, as an industry, we should move towards adopting a more subjective approach to risk-assessing potential clients.
Risk and compliance analyst, CMS, Sheffield
Rights for jurors
Having recently completed jury service at Leeds Crown Court, I feel I must highlight a major failing in the otherwise excellent Covid-19 prevention measures. Why are jury members informed upon arrival that the ‘wearing of face coverings is not required in the jury areas’. This includes the waiting and deliberation rooms.
The jury waiting room holds 30 jurors at any one time, albeit with chairs socially distanced. The 12 members of the jury can deliberate over several days.
During my period of jury service, only a few (fewer than five) jurors wore a face covering.
Jury members appear to have no workplace rights. You cannot refuse to serve citing the less than adequate Covid-19 measures. Jurors have no voice to speak on their behalf.
We need rights for jurors.
Name and address supplied