Journal Article

Reverse engineering legal professional privilege in a globalising world – the Australian case

Goldbarsht, Doron

2020

Overview

Purpose This paper aims to explore the ways in which the international standards in the field of anti-money laundering (AML) and counter-terrorist financing (CTF) have reshaped regulatory regimes in a globalised world. Design/methodology/approach This paper deconstructs the origins and development of international standards in the field of AML and CTF dealing with longstanding legal professional privilege. This paper adopts both qualitative and quantitative research methodologies. The qualitative aspect comprises a literature review of sources, including scholarly works, Financial Action Task Force (FATF) recommendations, reports and domestic laws. The quantitative aspect analyses a unique and comprehensive table reproduced below, that indicates Australia’s compliance with all the FATF recommendations over more than a decade with full alternation to FATF’s revisions of its recommendations. Findings This paper demonstrates that an understanding of the influence of the FATF norms can shed light on the departure from regular lawmaking processes and emerging forms of international governance. The conclusion suggests that tranche II is coming and Australia will amend it in domestic regime to comply with the international standard, applying the AML/CTF regime to the legal profession and thus interfering with legal professional privilege. The question is not if but when. Originality/value This paper fills the gaps in the existing literature by contemplating the future of legal professional privilege globally and in Australia, which provides a case study of a regime that does not yet comply fully with AML and CTF international standard. This approach differs significantly from that of other literature in the field, which deals comprehensively with the theoretical foundations of legal professional privilege, as well as its practicalities and limitations, without considering the influence of the international non-binding norms.

• Publisher: Emerald Publishing Limited,Emerald Group Publishing Limited
• Subject: Attorneys / Banking industry / Case studies / Communication / Confidentiality / Counterterrorism / Governance / International finance / International standards / Judicial process / Laundering of money / Law / Legal professions / Legislation / Literary criticism / Literary influences / Literature reviews / Litigation / Money laundering / Privileges & immunities / Professional relationships / Professionals / Public interest / Quantitative analysis / Regulation / Regulatory reform / Research methodology / Retainers / Social privilege / Terrorism / Terrorism financing / Terrorists