msba section of estate and trust Deborah A. Cohn, Chair Mary Beth Beattie, Chair-Elect Newsletter Mary Alice Smolarek, Editor Eileen Day O’Brien, Secretary Anne W. Coventry, Editor Winter 2012 Vol. 22 No. 1 Notes From The Chair Deborah A. Cohn1 Paley, Rothman, Goldstein, Rosenberg, Eig and Cooper o combat money laundering and fi nancing and other related threats to rules under which attorney-client con- terrorist fi nancing, the interna- the integrity of the international fi nan- fi dentiality generally takes precedence Ttional community has issued cial system."7 In 2010 FATF issued its over disclosure requirements. The U.K. various laws, regulations and guidance Guidance on the Risk-Based Approach has already adopted this aspect of the on international fi nancial fl ows. U.S. to Combating Money Laundering and FATF recommendations, and lawyers residents, for example, have had to Terrorist Financing (Recommenda- there are filing significant numbers report on material overseas fi nancial tions)8 to combat these threats. of SARs and complying with the no holdings2 under the Bank Secrecy Act3 tipping-off requirements. since 1970 and in recent years have These Regulations may create serious had to disclose significant personal confl icts for lawyers. They require a Although the U.S. has not yet enacted information when opening fi nancial ac- lawyer to fi le suspicious activities re- laws and regulations calling for SARs counts4 and to fi le additional reports on ports (SARs) with government agencies and imposing no tipping-off rules, material overseas fi nancial holdings.5 on potential or ongoing client activities these may not be far off. The U.S. that the lawyer suspects may involve continues to be viewed as a relatively Additional recent changes refl ect the money laundering or terrorist fi nancing easy country in which to launder funds, efforts of the international Financial and, at the same time, they call for a and Congress and the Administration Action Task Force (FATF)6, established ban on informing clients about these re- have proposed measures to address in 1989 to "set standards and promote ports (the “no tipping-off” rule). These this issue. effective implementation of legal, recommendations clearly confl ict with regulatory and operational measures for the ABA's Model Rules of Professional combating money laundering, terrorist Conduct and state professional ethics (continued on page 2) IN THIS ISSUE Notes From The Chair ........................................................................................... 1 Maryland Caselaw Developments .......................................................................... 4 2012 Advanced Estate Planning Institute ............................................................ 7 Estate and Gift Tax Implications of Same-Sex Marriage Legislation ................... 19 Whose Money is it Anyway? .................................................................................21 Notes from the Chair. (continued from page 1) In 2011, Senator Levin (D-MI) introduced two acts,9 each 2. Client Risk: The FATF Guidance identifi es several catego- of which would designate “persons engaged in the business ries of potentially high risk clients. These include, inter alia, of forming new corporations, limited liability companies, politically exposed persons (PEPs) in foreign countries (e.g., partnerships, trusts or other legal entities” as fi nancial insti- a former deputy Minister of the Interior in a country with a tutions subject to anti-money laundering regulations unless history of civil strife or missing persons); clients conducting the attorney or fi rm uses a paid formation agent to form the their relationship or requesting services in unconventional entity.10 The exception would not protect trust and estate law- circumstances (e.g., offering to pay a premium for secrecy or yers since they do not use formation agents in creating trusts. speed, or requesting that cash wire-transferred from a foreign Lawyers preparing trusts or forming other entities for their country be deposited in the fi rm’s escrow account rather than clients would be required to undertake the scrupulous due in a bank account); and the use of legal structures making it diligence that banks and other fi nancial institutions undertake diffi cult to identify the true benefi cial owner or controlling before opening new fi nancial accounts and t o interests (e.g., use of nominees or layers of entities and trusts), collect and report on massive amounts of particularly if these have no apparent legitimate legal, tax, information about their clients. business or economic purpose. Similarly, in March 2012, the 3. Service Risk: The FATF Guidance identifi es Treasury Department’s Financial certain aspects of potential matters that may Crimes Enforcement Network increase risk, including: requesting that the (FinCEN) issued a Notice of attorney, rather than a financial institution, Proposed Rulemaking regard- handle the money; concealment of the source or ing Customer Due Diligence benefi cial ownership of funds; requesting Requirements for Financial that a particular lawyer lacking Institutions.11 The proposal relevant expertise handle the would require a law fi rm to disclose matter even after the lawyer the identity of its clients when the refers the potential client to fi rm creates fi nancial accounts on an attorney knowledgeable behalf of clients, including law fi rm in the field; and rapidly trust accounts that hold client funds transfering funds into or out in trust for the fi rm’s clients or that hold a client’s advance of real estate with no apparent legal, tax or business need payments of fees and expenses. These initiatives clearly for the speed. confl ict with client confi dentiality standards. The ABA considered the FATF Guidance as too vague to In October, 2008, before issuing its Recommendations, FATF assist lawyers in evaluating client and matter risks and, issued separate guidance for lawyer due diligence when hence, as inadequate to forestall laws and regulations that taking on and representing clients (FATF Guidance).12 This would create a confl ict between cooperating with efforts guidance is based on the recognition that some clients and to block money laundering and terrorism fi nancing and matters pose much greater risks of money laundering and ter- maintaining client confi dentiality obligations. Hence, in rorist fi nancing than others and the principle that a lawyer’s 2010, it built on the three categories of risk identifi ed by obligation should be to take prudent, proportional, risk-based the FATF Guidance and adopted Voluntary Good Practices steps to investigate the potential for money laundering or Guidance for Lawyers to Detect and Combat Money Laun- terrorist fi nancing. dering and Terrorist Financing (Good Practice Guidance).13 The ABA Guidance calls for lawyers and law fi rms to The FATF Guidance identifi es three risk categories and develop systems to minimize the risks. These systems calls for attorneys who identify potentially high risk clients might include expanding client intake procedures (e.g., to conduct enhanced due diligence and, if appropriate, to confl icts checks) to require an assessment of client and decline matters. matter risks before a new client can be accepted. Firms may want to appoint a partner to evaluate diffi cult situ- 1. Country Risk: The FATF Guidance suggests that higher ations and a compliance offi cer to engage in web-based risk countries include those subject to sanctions, embargoes research to obtain additional information about potential or similar measures; countries identifi ed by credible sources clients that appear to present high risks. They may also as having signifi cant levels of corruption or criminal activity; want to establish internal controls that ensure that new and countries known to support terrorist organizations. (continued on page 3) 2 Notes from the Chair. (continued from page 2) client matters are not opened without evidence that the to conduct signifi cant client due diligence? Are you being attorney has exercised due diligence in evaluating the asked to handle the money? Are you being asked to create risks posed by the client or matter. trusts or business entities that might obscure the true owner or benefi ciary? Does the transaction involve the purchase and How might a high risk situation present itself in your prac- sale of land (or tangibles such as cars or jewelry) that could tice? Here are two fact patterns that have clear indicia of be used to launder the cash? Are you being asked to main- potential risk: tain secrecy, serve as a nominee, or handle the transaction quickly? Are you being offered additional fees to maintain A potential client, Artemio Cruz, a Mexican national, contacts secrecy or work quickly? you. He wants you to prepare a trust for his children in the U.S with his wife, of Argentinian nationality, as trustee. He Each of us needs to be sensitized to the need for enhanced will fund it with part of an inheritance he just received from client intake procedures to reduce the risk that we are inadver- his grandfather's estate and will have the estate wire transfer tently participating in money laundering or terrorist fi nancing. $5,000,000 directly to your law fi rm's escrow account. He We also need to be aware of the evolving legal framework, asks that you prepare a legal memorandum on tax issues and both in FATF and in the U.S., impacting our relations with fi ling requirements involving a large gift by a foreign national our potential and existing clients and the potential pressures to a trust with U.S. benefi ciaries. He also requests referrals on client confi dentiality. to accountants and a banker. Endnotes: Another potential client, Abdul Hakim Khan, a Pakistani national with a green card, living in Chicago, says he made 1 The author thanks Duncan E. Osborne, President-Elect of substantial profi ts in hedge funds and commodities trading, the American College of Trust and Estate Counsel, of the and now wants to retire in the Washington area. He had fi rm Osborne, Helman, Knebel & Deleery, L.L.P., in Austin, lived in D.C.