Practical tips to ensure you’re ready to handle a Production Order and where to get further advice and support

Introduction

Recent months appear to have seen a focus by law enforcement agencies and the police in particular, on obtaining information about clients (or former clients) from law firms and in particular smaller law firms. Production Orders appear to be more common than previously was the case.

Small firms with their stretched resources often feel intimidated and somewhat under the microscope themselves. Corporate and conveyancing appear as the two highest risk areas for service of a Production Order on smaller law firms.

If you are unsure of something then yes. If you are confident in your response then no.

Some firms will be able to deal with these matters in house through their MLRO (Money Laundering Reporting Officer) with the assistance of the Law Society’s free resources. Whilst other firms will need step by step guidance on complex or unusual matters. Key is going to be Legal Privilege. In this short article we give some practical tips.

What can I tell the police?

In the absence of evidence of consent from the client or a Production Order from a Crown Court then you should not even confirm if your law firm has acted for the client. If you receive an enquiry simply explain that your duties under the SRA Handbook preclude you from confirm if you act or not for a particular client but that you would be willing confirm whether or not your firm acted if they have a signed consent from the individual subject of the enquiry or a Production Order.

The Production Order

Once you have the Production Order you will have seven days to comply with it. It is possible to challenge, amend and vary the Production Order but beware you need to give two clear days notice of this and firms that sit on the document for some days have found that they have left it too late to query or vary Production Orders.

Breaching Production Order is a criminal offence so you need to be taking steps immediately upon receipt. It should not go into the “too hard” or “deal later” piles as you may hinder your response.

The form that should be used by the Crown Court is very simple and gives a clear summary of the client information sought, the dates under investigation, confirms the seven days to comply and how to query and vary it.

Unfortunately, like all precedents it can occasionally be misused either by judicial error or more likely by the police asking a Judge to sign it and missing key information off the draft Order. To protect you and your firm it is worth checking it meets the criteria set out in Section 345 of the Proceeds of Crime Act 2002. Around 50 per cent of the recent Orders we have seen, do not.

Legal privilege is usually preserved and unless an exception is identified advice to the client will need to be removed (to comply with the Production Order).

Advice and support

Read the key Law Society Practice Note on financial crime investigations if contacted by the police or law enforcement personnel even before they obtain a Production Order.

The Law Society also operates the AML (Anti-Money Laundering) Directory of specialist solicitors advising firms on responding to money laundering and Proceeds of Crime Act 2002 investigations and issues. Under the AML Directory the first 30 minutes of advice is free. The Small Firms Division would encourage smaller firms to make use of this resource.

If you are unsure of something then yes. If you are confident in your response then no.

Some enquiries received under the AML Directory scheme are literally five minutes. Others lead to instruction of my firm (or another firm within the Directory). Each enquiry is unique and the nature of the queries will probably determine whether you want detailed advice or just to check an isolated point.

As the Production Order can have criminal consequences for failing to comply it is essential you get your response right.

Conclusion

The key things are.

  1. Preserve confidentiality until you have a lawful reason to disclose anything;
  2. Read the Practice Note;
  3. Take advice from the AML Directory members if you are unsure of anything.