Lawyers, legal privilege and money laundering: The UK and Malaysian experience

Abstract

This paper intends to examine the issues relating to legal professional privilege in the context of money laundering. The situation in the UK and Malaysia is compared through an examination of statute and case law. Some reference is also made to other common law jurisdictions such as Australia. The main legislation that is covered by this paper, where it impacts on the legal profession, is the Malaysian Anti-Money Laundering Act 2001 and the UK Proceeds of Crime Act 2002. Emphasis is given to cases where the main issue involves the investigation rights of a statutory body, vis-a-vis legal privilege, to assess if such cases are a precedent for money laundering cases. The paper also examines the position of lawyers regarding such money laundering related issues as ‘tipping-off’ and whether or not privilege can be preserved if a disclosure must be made. The position of litigation and advice privilege in money laundering legislation is also covered, and an analysis is made as to whether or not this common law privilege can be overridden either by statute or by the courts.