Anti-Money Laundering and Terrorist Financing
Working Group
Risk Advisories for the
Legal Profession
Advisories to Address
the Risks of
Money Laundering
and Terrorist Financing
December 2019
1
About These Risk Advisories
The nature of legal practice makes it vulnerable to targeting by criminals seeking to launder the
proceeds of crime or facilitate the financing of terrorist activities. Canadian legal professionals
assist clients with the purchase and sale of real estate, the creation of corporations and trusts,
and the acquisition and sale of businesses. They act as intermediaries for a wide range of
financial transactions. Millions of dollars in client funds flow through lawyer trust accounts every
year.
Criminals seek out legal professionals because their services may be required to complete
certain transactions and to access specialised legal and notarial skills and services which could
assist the laundering of the proceeds of crime and the funding of terrorism. The involvement of
legal professionals can also lend an air of respectability to transactions undertaken by criminals
seeking to convert the proceeds of crime into “clean” money.
Members of the legal profession in Canada are subject to a number of rules and regulations
designed to mitigate the risks of becoming involved in money laundering and terrorism
financing. These include requirements to identify and verify the identity of clients and third
parties, manage risks, and understand the client’s financial dealings in relation to the retainer.
Lawyers and Quebec notaries also must comply with rules that limit how much cash they may
receive, and restrict the use of trust accounts. Members of the legal profession are also
prohibited from assisting with or facilitating illegal conduct and have a positive duty to withdraw
if continuing to act for a client would breach this rule.
To address the money laundering and terrorism financing vulnerabilities they may face legal
professionals need to be aware of the risks that may be inherent in legal practice. Some risks
may be related to the clients and their activities; others may arise from the nature or
circumstances of a transaction. Some risks may be more likely to arise in specific practice
areas, others may arise regardless of the area of practice.
The following advisories address risks arising in five areas: real estate, trusts, private lending,
shell corporations, and litigation. They are intended to highlight specific client and transaction
risks. While not exhaustive, the lists of risks will assist legal counsel in recognizing situations
where additional due diligence may be required. The advisories also remind lawyers and
Quebec notaries of the need to be satisfied, on an objective basis, that the transaction or other
activity for which a client is seeking assistance is legitimate before acting or continuing to act on
the matter.
Risk Advisory for Real Estate Page 2
Risk Advisory for Shell Corporations Page 5
Risk Advisory for Private Lending Page 8
Risk Advisory for Trusts Page 10
Risk Advisory for Litigation Page 12
2
AML Risk Advisory: Real Estate
When does this risk advisory apply?
Real estate is a popular vehicle for those engaged in fraud and money laundering. It is generally
an appreciating asset and its sale can lend legitimacy to the appearance of funds.
Consequently, the purchase of real estate is a common outlet for criminal proceeds. Fraudsters
and other criminals often go to great lengths to ensure that real estate transactions used to
launder funds look legitimate, masking the true intent of the transaction, which could be a
purchase, sale or refinancing.
Given the significant role members of the legal profession play in real estate transactions, to
avoid assisting or furthering illegal activity, they must be aware of the risks associated with
providing legal services in this area. Where there are suspicious circumstances, a legal
professional must be satisfied on an objective basis that the transaction is legitimate, prior to
acting or continuing to act.
Fraud in real estate generally occurs as:
• Fraud for shelter - to obtain a property for legitimate purposes, but by misrepresenting
facts to obtain financing or to mask the identity of the beneficial owner.
• Fraud for profit – to acquiring large sums of money from different parties including a
registered owner, a mortgagee or a bona fide purchaser by fraudulent means.
The proceeds of real estate fraud are the proceeds of crime. Laundering of the funds occurs
when they are provided for the transaction, often flowing through the trust account of a lawyer or
notary, and are disbursed at the direction of the fraudster.
Criminals will also attempt to use funds earned from other illicit activities to purchase and
eventually sell real property, converting the illicit funds into legitimate funds. They may also use
the property to house illegal activity, or as a vehicle to launder additional funds.
What are risk factors?
While the indicators of fraud and indicators of money laundering activity often overlap, it is
important to be aware of the risks of both and develop mitigation strategies. Many of the
common risks are identified in the table below, but these lists are not exhaustive. While it is not
possible to completely eliminate all of the risks, lawyers and Quebec notaries must conduct
proper due diligence. This involves taking into consideration the indicators of fraud and money
laundering and relying on prior experience in these types of transactions. Even if not handling
the money, a legal professional engaged on a transaction will be aware of the financial details
and in many cases will be in a position to ask further questions about the transaction. If satisfied
that a transaction is legitimate, lawyers and notaries must comply with all requirements to
properly identify and verify the identity of clients, record this information and ensure proper
accounting for the transactions.
Real Money
Client Risks Estate Laundering
(Real Estate) Fraud
The company or individual has no e-mail address, physical address,
home or business telephone number (disconnected or fake), company X X
logo, contact person.
The client uses a post office box or general delivery address where other
options are available. X X
A party to the transaction is a foreign buyer, either an individual or
company, notable especially if on a watch list, whose only connection to X
Canada is the real estate transaction.
The client refuses to provide their own name on documents, or uses
different names on offers to purchase, closing documents and deposit X X
receipts.
The legal advisor experiences difficulty obtaining necessary, reliable
information to identify the client and verify the client’s identity. X X
The client insists on choosing the agent where an agent is being used to
verify identity. X X
The client changes instructions regarding amounts or payees just before
closing, or fails to bring in funds as promised. X
The client does not care about the property, price, mortgage interest rate,
legal and/or brokerage fees, and offers to pay higher than usual legal X X
fees for the legal services for the transaction.
The client does not appear familiar with property. X
The client will not permit contact with a prior legal counsel. X
The client is “out of sync” with the property (e.g. occupation, personal
wealth, level of sophistication). X X
A stranger who appears to control the client attends to sign documents. X X
One spouse or business partner is mortgaging equity in a property owned
by both. X
The client buys and sells often, preferring to deal in cash. X
The client contact is only or primarily by email. X X
The client has owned vacant, disused or run-down properties for a long
time, without activity on title or visible use of land. X
Corporate client officers and directors were appointed very recently. X
The company purchasing real estate has a complex ownership structure. X
The head office of a corporate client is or has been recently changed to a
non-existent address or one that is highly unusual or lacks credible X X
explanation.
The client pushes for a fast closing. X
The client who has been named in the media as being involved with
criminal organizations is purchasing a residential property.
X X
3
Real Money
Transaction Risks Estate Laundering
(Real Estate) Fraud
The same legal advisor is acting for all parties, except legitimate vendor. X
Funds are directed to parties with no apparent connection to the borrower or X X
the property.
Repeat activity occurs on a single property or for a single client. The title X X
shows one or more recent transfers, mortgages, or discharges.
Frequent and quick mortgage discharges occur on the property. X
The transaction location is distant from the lawyer’s office. X X
A buyer of income-generating property has no concern for generating profit
by filling vacancies or by adjusting rent/lease rates. X
The client produces a small deposit relative to price, or pays little or nothing
from their own funds.
X
The sale is presented as a “private agreement” – no agent is involved, or the X X
named agent has no knowledge of the transaction.
The municipality or utility companies have no knowledge of the client’s
ownership.
X
Unusual adjustments are made in favour of the vendor; the transaction
involves a large vendor take-back mortgage or an existing mortgage on a X X
purchased property is assumed by another individual without involvement of
a financial institution.
Payments from the client are received by way of counter cheques, bank X X
drafts and/or cash.
The transaction involves purchase of personal use property through a
business. X
Transactions involve a Power of Attorney or are carried out on behalf of
minors, incapacitated persons or others who may not have sufficient X X
economic capacity.
Behaviour or transactions are unusual compared to other similar clients (e.g.
high levels of assets, volume of transactions, nature of business activity). X X
The transaction involves legal entities, when there does not seem to be any
relationship between the transaction and the activity carried out by the X
buying company, or when the company has no business activity.
Last-minute transfers contemplating “Trustee” arrangements such as
“Trustee to beneficial owner” are made at NIL consideration followed
immediately by the registration of a mortgage and the advance of mortgage
X
proceeds.
An accelerated repayment of a loan/mortgage occurs shortly after the deal is
completed even if penalties are incurred. X
Transactions are not completed in seeming disregard of a contract clause
penalizing the buyer with loss of the deposit if the sale does not go ahead. X
The client makes a deposit for a house, reneges on the deal shortly
thereafter, then obtains a legitimate cheque from the legal advisor for the
value of the [Link]-existent address or one that is highly unusual or
X
lacks credible explanation.
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5
AML Risk Advisory: Shell Corporations
When does this risk advisory apply?
Lawyers and Quebec notaries must be alert to the risks of becoming involved with a client
engaged in criminal activity such as money laundering. Vigilance is required because the means
for these, and other criminal activities, may be transactions for which lawyers commonly provide
services.
Criminals are increasingly turning to shell companies to facilitate money laundering.
Anonymous shell companies allow criminals to hide their identities, conceal the origin and flow
of money, hide the identities of true beneficiaries or enhance the perception of legitimacy. They
are typically used during the “layering phase” of money laundering involving often complex
financial transactions designed to hide the illegal source of funds.
Legal advisors must be aware of the risks when dealing with clients looking for assistance with
products or transactions that would facilitate anonymity and allow beneficial owners to remain
hidden without a reasonable explanation. While client identification and verification rules are
essential to ensure that lawyers know their clients, it is imperative that lawyers and notaries also
understand the facts relating to their retainers, particularly when a shell corporation is involved.
They must ask probing questions to ensure that they understand the subject-matter and
objectives of their retainers, including:
i) whether there is a legitimate business or legal reason for using a particular corporate
structure;
ii) who are the legal and beneficial owners of the property and business entities;
iii) who has control of the business entities; and
iv) where it is unclear, what is the nature and purpose of complex or unusual
transactions.
Legal advisors must be satisfied on an objective basis that every transaction is legitimate, prior
to acting or continuing to act.
What are risk factors?
To address the risks, lawyers and Quebec notaries should be on the lookout for suspicious
circumstances, including the following when setting up or representing shell corporations:
Transaction
Description of Risk Client
Risks Risks
(Shell Corporations)
The retainer involves a non-face-to-face transaction where the legal
advisor has not previously met the client seeking to establish a shell X
corporation or the agent of the corporation in person.
The client or corporation’s reasons for selecting the lawyer are unclear
given the lawyer’s geographic location or practice area. X
The lawyer is not asked to provide any legal services other than assisting
with the creation of the shell corporation. X
The corporation is transacting with a party that has a suspected or known
history of drug trafficking, money laundering, actions resulting in civil
forfeiture, loansharking, fraud, high-stakes gambling or similar activity. X
The lawyer experiences difficulty obtaining necessary, reliable information
to identify an agent of the corporation or verify the agent’s identity. X
Insufficient information is provided by the client to identify the beneficial
owners of the corporation. X
Third parties or intermediaries are involved, including in providing
instructions. X
The corporation has been refused counsel or changed counsel recently
or several times without apparent good reason. X
The corporation has no or nominal assets, or assets consisting solely of
cash and cash equivalents. X
The corporation was incorporated in a jurisdiction that might enable
anonymity. X
The corporation’s financial transactions occur in a jurisdiction that
minimizes transparency or provides an environment more amenable to X
money laundering.
Gaps or red flags in the corporation’s online presence are evident.
One spouse or business partner is mortgaging equity in a property owned X
by both.
Inconsistent information exists relating to the corporation; e.g. a
corporation doing business in one jurisdiction has an address and contact X
information in one or more other jurisdictions.
The lawyer encounters contact concealment, e.g. a generic email
address, no physical address, etc. X
The client offers to pay an unusually high fee for the legal services. X
The lawyer is not asked to provide any substantial legal services in
connection with the transaction. X
The lawyer cannot obtain information necessary to identify the originator
or beneficiary of a transaction. X
The corporation’s transactions appear inconsistent with the corporation’s
or the other party’s profile/circumstances (e.g. age, income, geographic X
location or occupation).
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Client Transaction
Description of Risk Risks Risks
(Shell Corporations)
The corporation transacts through a foreign bank and exceeds the
anticipated volume projected in its client profile for wire transfers in a
given time period, or the corporation exhibits a high level of sporadic X
activity that is inconsistent with normal business patterns.
A corporation makes payments that have no stated purpose, do not
reference goods or services, or identify only a contract or invoice number.
X
The goods or services of the company do not match the company’s
profile based on information provided by the client. X
The corporation transacts with businesses sharing the same address. X
The client’s business discloses the frequent involvement of beneficiaries
located in high-risk, offshore financial centers. X
Multiple high-value payments or transfers are made or instructed between
shell companies with no apparent legitimate business purpose. X
The client attempts cash transactions with an inability to explain the
source of funds/wealth.
X
The client uses partial signatures on contracts and/or invoices X
The lawyer is retained to complete a transaction after funds have already
been advanced or after a loan agreement or a security agreement has X
been signed.
Transaction documents are unusual or inconsistent with the client’s
explanation of the transaction.
X
The corporation transacts from an offshore jurisdiction that is known to be X
secretive or restrictive.
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8
AML Risk Advisory: Private Lending
When does this risk advisory apply?
Criminals may attempt to use private lending transactions to launder the proceeds of crime, and
may engage the services of lawyers for the transactions.
Members of the legal profession must know their clients and properly understand the facts
relevant to their retainers. Where there are suspicious circumstances, a legal professional must
be satisfied on an objective basis that the transaction is legitimate, prior to acting or continuing
to act.
All lawyers and Quebec notaries should be alert to and appropriately consider risk factors
associated with illegal activity when retained to do any of the following:
• Drafting, reviewing or advising on a loan agreement, promissory note, guarantee,
mortgage, security agreement or other loan documents;
• Registering a security agreement for a private loan; or
• Taking any steps to assist with the advance or recovery of funds related to a private
loan.
What are risk factors?
In addressing the risks, legal counsel should be on the lookout for suspicious circumstances,
including the following for private lending transactions:
Description of Risk Client
Risks
Transaction
Risks
The retainer involves a non-face-to-face transaction where the legal
X
advisor has not previously met the client in-person.
The client’s reasons for selecting the lawyer or Quebec notary are
unclear given the geographic location or practice area. X
A party to the transaction (or a family member or close associate) has
an alleged or known history of drug trafficking, money laundering, civil X
forfeiture, loansharking, fraud, high-stakes gambling or similar activity.
The lawyer or notary experiences difficulty obtaining necessary, reliable
information to identify the client and verify the client’s identity.
Conversely, the client appears unusually familiar with client X
identification and verification requirements.
The transactions Involves third parties or intermediaries, including in
providing instructions. X
Client Transaction
Description of Risk Risks Risks
(Private Lending)
The client has been refused counsel or changed counsel recently or
several times without apparent good reason. X
The client offers to pay an unusually high fee for the services. X
The client’s instructions change unexpectedly and for no logical reason. X
There is no clear or plausible reason for the borrower not borrowing from
a commercial lender. X
The loan seems inconsistent with the client’s or the other party’s profile/
circumstances (e.g. age, income, geographic location or occupation). X
The lawyer or notary is not asked to provide any substantial legal
services in connection with the transaction. X
Funds are exchanged between the parties in cash but the parties are
unable to explain the source of funds/wealth.
X
The borrower named in the loan documents is not the actual recipient of
the funds.
X
There is no security registered for the loan, without explanation, or the
security is a subsequent mortgage or charge on a fully or near-fully X
encumbered property.
The actual or agreed-to repayment period is unusually short. X
The legal professional is retained after the funds have already been
advanced or after the loan agreement or security agreements have been X
signed.
The loan documents are unusual or inconsistent with the client’s
explanation of the transaction. X
The interest rate exceeds the criminal rate or is substantially above/below
market rates. X
The funds are received from or paid out to an offshore jurisdiction that is
known to be secretive or restrictive. X
The entity providing the loan proceeds (or receiving the loan payout) is
not the party named in the loan documentation and the relationship X
between the entity and the named party is not apparent.
9
10
AML Risk Advisory: Trusts
When does this risk advisory apply?
While there are many legitimate uses of trusts for matters such as estate planning and asset
management, members of the legal profession must be on guard against clients who wish to
use such instruments for an improper or fraudulent purpose. Some criminals see trusts as
potentially useful vehicles to hide the origin and ownership of assets.
Disguising the real owners and parties to a transaction is a necessary requirement for money
laundering to be successful, and although there may be legitimate reasons for hiding ownership,
it should be considered a red flag.
The use of trusts to purchase real property poses an increased risk that the trust will be used to
obscure ownership and launder the proceeds of crime. Legal counsel who are asked to
become involved in the management of a trust should be extremely wary, as this is a technique
used by criminals to provide respectability and legitimacy to their activities.
Lawyers and Quebec notaries must strictly comply with client identification rules including the
requirement to know their client and the source of the client’s funds, and to understand the
nature and scope of the retainer. Legal counsel must be satisfied on an objective basis that
every transaction is legitimate, prior to acting or continuing to act.
What are risk factors?
To address the risks, lawyers should be on the lookout for suspicious circumstances, including
the following when asked to create or be involved in the management of trusts:
Transaction
Description of Risk Client
Risks Risks
The retainer involves a non-face-to-face transaction where the legal
advisor has not previously met the client in-person. X
The client’s reasons for selecting the legal advisor are unclear given
the geographic location or practice area. X
The client offers to pay an unusually high fee for the services or to
provide a substantial retainer that is excessive considering the scope X
of the retainer.
The client or a party in the matter (or a family member or close
associate) has a suspected or known history of drug trafficking, money
laundering, actions resulting in civil forfeiture, loansharking, fraud, high- X
stakes gambling or similar activity.
The legal advisor experiences difficulty obtaining necessary, reliable
information to identify the client and verify the client’s identity, or the
client appears unusually familiar with the client identification and X
verification requirements.
Client Transaction
Description of Risk Risks Risks
(Trusts)
Third parties or intermediaries are involved, including in providing
instructions, without good reason. X
The client has been refused counsel or changed counsel recently or
several times without apparent good reason. X
A complicated ownership structure is created when there is no legitimate
or economic reason for it. X
There is no sensible reason for the transaction. X
The client changes instructions without explanation, especially at the last
minute. X
The legal advisor is not asked to provide any substantial legal services in X
connection with the transaction.
The proposed retainer relates to keeping documents or other goods,
holding large deposits of money or otherwise using the trust account of X
the lawyer or notary without the provision of legal services.
An existing trust agreement contains minimal details regarding the
arrangement or is poorly drafted. X
Beneficiaries are difficult to identify; beneficiaries are minors. X
The relationship between individual people named in the trust agreement
suggests that there may be no legitimate purpose to the transaction. X
The transfer of funds is not consistent with the known legitimate income
of the client. X
The client is evasive about the source of funds for the trust. X
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12
AML Risk Advisory: Litigation
When does this risk advisory apply?
To avoid assisting or furthering illegal activity, lawyers must be aware of the risks associated
with providing certain types of legal services. Litigation, particularly debt recovery actions, may
pose risks. Criminals may attempt to launder proceeds of crime by filing and recovering on civil
claims. This could, for example, involve using fabricated documents to misrepresent
transactions or claim an interest in property. A lawyer should not assist a client in enforcing a
contract that may be based on criminal activity.
Lawyers must know their clients and properly understand the facts relevant to their retainers.
Where there are suspicious circumstances, a lawyer must be satisfied on an objective basis that
the transaction is legitimate, prior to acting or continuing to act.
Lawyers should be alert to and appropriately consider risk factors when retained to assist with
the recovery of funds including:
• a private loan (secured or unsecured);
• a builder’s lien claim;
• a claim for recovery of capital investment;
• a claim for defective goods, including intellectual property; or
• a claim for unpaid commercial invoices.
What are risk factors?
In addressing the risks, legal counsel should be on the lookout for suspicious circumstances,
including the following for private lending transactions:
Description of Risk Client
Risks
Transaction
Risks
The retainer involves a non-face-to-face transaction where the legal
advisor has not previously met the client in-person. X
The client’s reasons for selecting the lawyer or Quebec notary are
unclear given the geographic location or practice area. X
The client or a party in the matter (or a family member or close
associate) has a suspected or known history of drug trafficking, money
laundering, actions resulting in civil forfeiture, loansharking, fraud, high- X
stakes gambling or similar activity.
The lawyer experiences difficulty obtaining necessary, reliable
information to identify the client and verify the client’s identity.
Conversely, the client appears unusually familiar with client X
identification and verification [Link] and verification
requirements.
Client Transaction
Description of Risk Risks Risks
(Litigation)
The transactions involve third parties or intermediaries, including in
providing instructions. X
The client has been refused counsel or changed counsel recently or
several times without apparent good reason. X
The client offers to pay an unusually high fee for the services or to
provide a substantial retainer that is excessive considering the scope of X
the retainer.
Client instructions change unexpectedly and for no logical reason. X
The claim settles quickly with little or no work being done by the lawyer.
The defendant does not contest the claim, resulting in default judgment X
with the claim paid immediately.
The debt relates to a contract based on criminal activity. X
The claim seems inconsistent with the client’s or the other party’s profile/
circumstances (e.g. age, income, geographic location or occupation). X
The claim asserts that funds were exchanged between the parties but the
client is unable to satisfactorily explain the source of funds/wealth.. X
The claim is against an individual/entity that is not the actual recipient of
the funds in question. X
The documents supporting the claim are unusual or inconsistent with the
client’s explanation of the transaction or with other documents. X
No security is registered for the loan, without explanation, or the security
is a subsequent mortgage or charge on a fully or near-fully encumbered X
property.
The actual or agreed-to repayment period for the debt is unusually short. X
The interest rate for the loan exceeds the criminal rate or is substantially
above/below market rates. X
The funds to settle the claim are received from or paid out to a third party
whose relationship to the parties is unknown, or to an offshore jurisdiction X
that is known to be secretive or restrictive.
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