Confidentiality vs Justice. The effect of the No Tipping Off (NTO) rule

Abstract

The NTO rule prevents certain parties from disclosing to their client when they have launched a Suspicious Transaction Report (STR) with the Financial Information Centre (FIC). This creates a dilemma for those meant to report such activity as they will have to decide which to prioritise. The good faith and trust that exists and is expected to be upheld, especially between an attorney and their client, compared to, the pursuit of justice and investigations into possible money laundering attempts and other suspicious activity. Without a clear understanding of what is expected, attorneys may face consequences from both sides as choosing either priority will exclude the other. Prioritising the relationship between the attorney and client may impede the investigation of suspicious activity and while maintaining the trust and faith of the client, may affect the greater public as it may protect a criminal’s actions. Prioritising the responsibility to report suspicious activity and not informing the client would damage the faith and openness that should exist in the relationship. This would negatively impact the public as it breaks the confidentiality and trust that the public should have in attorneys who are meant to fight for them and assist them in their time of legal need. Full transparency is often needed during the litigation process and this can be difficult without trust and if it is one sided. If no solution is decided upon then it will be up to the individual attorney which hinders legal certainty, as it would be unclear what service you would be getting when you approach an attorney. Finally, the lack of certainty for legal practitioners is distressing and needs to be addressed as it is these practitioners that are required to see the necessary growth in the legal sphere.