Calling banking secrecy to account
19 July 1999
Monty Raphael, senior partner, Peters & Peters
David Kirk, managing partner, Muirhead & Burton
Gwen Griffiths, head of banking, Hammond Suddards
Last week, the assistant New York district attorney called for an end to banking secrecy laws which prohibit the exploration of confidential information on individuals and companies.
John Moscow said at a conference marking the first anniversary of Jersey's Financial Services Commission that banking and corporate secrecy laws had to be abolished if the rule of law was to be established in a unified global economy.
He argued that honest customers do not require strict confidentiality from their banks. He added that bank secrecy statutes, which are abused by criminals, must be adapted.
If his idea is instituted it could affect relationships between banks, customers, and the lawyers of both.
But will the move be a positive one, and will it make life easier for lawyers investigating fraud if changes are introduced?
Monty Raphael, senior partner at Peters & Peters and a specialist in white-collar crime, thinks the financial world needs strict rules of client confidentiality to function.
Raphael says: "I think the issue is can you run a sophisticated financial community without confidentiality.
"It would be worrying if law enforcement had access to all financial information. I worry about that from a libertarian point of view.
But he adds: "While I am not in favour of abolishing banking confidentiality laws wholesale, I don't believe in bank secrecy."
However, he says: "I believe in commercial confidentiality. There should be access to banking information, but only after due process.
"Banking secrecy laws are used by criminals to hide their proceeds in a way that cannot be tracked, but that does not mean you have to abolish banking confidentiality.
"It would be difficult for commerce to continue without privacy. Just as normal individuals need privacy, so do customers and their banks."
But Raphael admits that wholesale free access to bank accounts would make lawyers' jobs easier.
"Lawyers would do a better job for their clients because all the evidence would be on the table and assets would be easier to track," he says.
However, leading fraud lawyer and managing partner of Simons Muirhead & Burton David Kirk thinks banking secrecy hardly exists anyway.
Kirk says: "You can't any longer say if a client has money in Spain it will not be found. Money is trackable."
He explains that as the financial world goes global, so are the rules that apply to its institutions.
Kirk says: "Banking secrecy has been eroded immensely over the last 10 years because of new legislation and globalisation.
"In the UK the Serious Fraud Office has access to files in banks. Abroad is no longer that different.
"Even Switzerland, the Isle of Man and the Caribbean have little secrecy.
"Banana republics are the only place left to hide criminal money. If you want to risk putting it in those, you may not get it back.
"In the rest of the world, arms may be twisted to get information, but that is as far as it goes.
"Banks are under no obligation to tell customers their files are being checked but they are under pressure to blow the whistle on customers."
Head of banking at Hammond Suddards Gwen Griffiths says a change in the law may make it easier for banks and lawyers to know when they can expose client accounts to scrutiny.
Griffiths explains that the law in the UK ensures banks have a duty of secrecy towards customers except in special circumstances, such as a criminal investigation.
But she says it is not always clear when these circumstances arise.
"Unless there is a clear-cut situation where information can be revealed, the bank and lawyers can find themselves in difficulty as the duty of secrecy that exists is not clear-cut," she says.
"If there was not a duty of secrecy, it would make the position of banks and lawyers a lot easier."
But she agrees with Raphael that issues of customer protection need to be taken into account.
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