This guidance note, including a precedent certificate, should be read in total by solicitors in these circumstances.

Guidance notes are intended as guides only and are not a substitute for professional advice. No responsibility is accepted for any errors or omissions in this guidance note, howsoever arising.

This guidance note provides guidance to solicitors when requests are received to provide a certification or confirmation (both referred to in this note as certification) of the beneficial ownership of a client (being an Irish registered company) to a third party from:

• in-house counsel in respect of their employer's (and therefore their client’s) beneficial owner(s) or in respect of an entity in the employer’s group;
• in-house counsel acting as company secretary; 
• private practice solicitor in respect of a client's beneficial owner(s); and
• solicitor firm owned company which is providing trust and company secretarial services in the form of acting as company secretary to the law firm's / solicitor's client.

Scope of guidance note

This guidance note: 

• is provided as general information purposes only and is not intended to and does not constitute or comprise legal advice. The Law Society of Ireland will not be liable for loss or damage arising out of or in connection with your use of the guidance note.
• is not designed to assist solicitors complying with their own anti-money laundering obligations[1]; and 
• does not deal with certification of the beneficial ownership of a client which is not an Irish registered company.

Solicitors are also reminded: 

• to carefully consider in all of the circumstances and given the capacity within which the request for certification is made, whether it is appropriate to provide certification of beneficial ownership of a client entity;
• of their company client’s statutory obligation to provide beneficial ownership information to a designated person to satisfy a company’s own anti-money laundering obligations; and 
• that the risk relating to reliance by designated persons on third parties to satisfy their own anti-money laundering requirements remains with the designated person.

Introduction

All references in this guidance note to “the Act” are to the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 to 2021.

Other ‘designated persons’[2] may look to a client's solicitor with a view to satisfying compliance with their own anti-money laundering obligations. The risk relating to reliance by designated persons on third parties to satisfy their own anti-money laundering requirements remains with the designated person. Designated persons will have different requirements which they require to be fulfilled to satisfy their internal respective policies and procedures.

A company must provide a designated person with the following information where it enters into an occasional transaction[3] with a designated person, or forms a business relationship with a designated person:

• information about its legal ownership, including information on its beneficial ownership;
• information identifying all the beneficial owners of the relevant entity; and
• notification of any change to that entity's beneficial ownership register that occurs which is relevant to the occasional transaction or that occurs during the course of the business relationship formed, and the date on which it occurred within 14 days from the date on which the relevant entity becomes aware of the change.[4]

What is a Beneficial Owner?

Under the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019[5] (the Company BO Regulations), a beneficial owner is any individual person who ultimately owns or controls the client company through direct or indirect ownership of more than 25% of the shares or voting rights or ownership interest in the client company or group as a whole. 

Corporate and legal entities are required to obtain and hold adequate, accurate and current information on their beneficial owner(s) in their own internal beneficial ownership register and to enter this information on the Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies (RBO)[6].     

In the absence of a beneficial owner, the senior managing officials must be entered into the company’s internal beneficial ownership register and the RBO[7].

A company might engage a number of parties to assist it to comply with the Company BO Regulations such as

• a director / employee;
• in-house solicitor;
• solicitor / solicitor firm;
• trust and company secretarial service provider (TCSP);
• solicitor firm owned TCSP;
• accountant; and
• other individuals or entities.

What is Beneficial Ownership Certification?

Legal entities can be used to disguise involvement in terrorist financing, money laundering, tax evasion, corruption, fraud, and other financial crimes. Requiring the disclosure of key individuals who own or control a legal entity (the beneficial owners) is often required to ensure the legal entity is conducting legitimate business.

Solicitors and company secretaries are frequently asked by third parties[8] or by clients on behalf of third parties, to confirm and / or certify the beneficial ownership of a client company. In many instances this information is not publicly available. However, the company client ought itself to be able to provide this information and as mentioned above, is required to provide it to a designated person[9]. 

As part of this certification, a solicitor may be requested to provide information on relevant individuals, who could be either the beneficial owner(s) or the senior managing officials of the client company, including their legal name, residential address, nationality, date of birth and / or the nature of their ownership and / or control.

The above listed information is entered into the RBO filing for the relevant legal entity.

Practitioners are reminded that:

• it is the responsibility of the designated person to ascertain and verify the beneficial ownership information provided against the client's RBO filing;
• access to the RBO is restricted to designated persons, for the purpose of compliance with their own statutory obligations, and competent authorities only[10];
• public access is restricted to viewing a legal entity's profile which includes the entity's legal name, registered office address and the number of beneficial owners filed for that entity[11]; and
• a copy of the RBO filing should not be requested by or provided to a designated person by another designated person.

Capacity to provide Certification

This guidance note considers the capacity of the person providing certification in the following scenarios:

Certification to a third party, being a designated person, from:

Certification from in-house counsel in respect of an entity in the employer group

An in-house solicitor who is familiar with their employer's corporate structure and assists his or her employer with company law and / or compliance with anti-money laundering and corporate secretarial work might feel comfortable to provide certification of a beneficial ownership based on their actual personal knowledge.  An in-house solicitor might need to consider the following: 

• Are you sufficiently proximate to provide the information and if not, is there a more senior solicitor sufficiently proximate to provide the confirmation?
• Can the company secretary of the client provide the confirmation?

Certification from an in-house counsel acting as company secretary of an entity

An in-house solicitor who also acts as company secretary for his or her employer or any entity connected with the employer and is charged with updating the register of members, the register of interests in shares and the beneficial ownership register may have sufficient knowledge of the ownership and control of that entity to give the certification. 

Certification from the solicitor in respect of a client's beneficial owner(s)

While it may be convenient for a client to have their solicitor provide the certification, a solicitor ought to consider whether the solicitor is the appropriate party to complete the certification.  Knowledge of the ownership and control of an entity may be more appropriate for a director and / or a company secretary to declare. 

Solicitors may not be involved in acting on behalf of companies to ensure compliance with the Company BO Regulations and, as such, a request to certify beneficial ownership needs to be cautiously considered.  In most scenarios, requests may be best redirected to the company itself, or a third party acting on behalf of the company which has sufficient knowledge of the ownership and control of that client, to ensure compliance with the Company BO Regulations. 

In exceptional circumstances, solicitors may be able to certify beneficial ownership.  Before giving any certification a solicitor might need to consider the following: 

• The basis on which he / she is providing the certification and what steps that solicitor has taken to verify the information being provided.
• Are you sufficiently proximate to provide the information and if not, is there a more appropriate person to give the certificate?
• Can the company secretary of the client provide the certificate?

Certification from a solicitor firm TCSP company which is providing trust and company secretarial services in the form of acting as company secretary to the law firms' / solicitor's client

In instances where a solicitor firm TCSP entity is engaged in company secretarial services i.e., acting as company secretary and charged with updating the register of members, register of interests in shares and the beneficial ownership register, the TCSP in its capacity as company secretary may have sufficient knowledge of the ownership and control of the client to give the certification. 

In instances where a solicitor firm TCSP entity is engaged in services for a client that do not include updating the register of members, register of interests in shares and the beneficial ownership register, neither the solicitor firm nor the solicitor are likely to be in a position to confirm or certify the beneficial ownership of a client entity. 

In scenarios where there is a joint company secretary arrangement, it is prudent to consider whether both representatives for both company secretaries need to sign the certification or whether it is sufficient for one of the secretaries to sign or whether confirmation regarding the information should be sought from the other company secretary. 

Solicitors acting in the above circumstances do not have any legal requirement to provide this certification to a third party on behalf of a client and should exercise judgment and caution regarding any certification given.

Considerations for all solicitors

Prior to certifying the beneficial ownership of a client entity, solicitors should consider the following (which are not intended to be exhaustive) in addition to the considerations above: 

• Consider whether, in the context of providing the requested certification (which certification itself constitutes the provision of a legal service if provided by a solicitor), there might be any potential risk of unwittingly facilitating the offence of money laundering and whether there might be any potential sanctions, exposure or breach (including, for example, trusts with Russian beneficial ownership)[12];
• Proximity to information sought to be confirmed e.g., do you have access to the register of members, register of interests in shares and the beneficial ownership register or any other relevant information such as transactions in relation to the beneficial ownership of shares;
• Whether the certification can be given based on your actual personal knowledge;
• Whether the contents of the certification should be confirmed with one of the directors of the client entity before it is sent to the third party designated person;
• Whether the contents of the certification should be qualified based on the latest available confirmation from a director;
• In advance of providing any certification indicating the personal details of a beneficial owner, consideration of compliance with GDPR[13], and whether that recipient is a designated person, entitled to review any information, and whether consent should be obtained prior to issuing the certification;
• Reviewing the latest Company Registration Office filing available on the CRO website and the register of beneficial ownership filing available on the RBO website[14] to ensure that the beneficial ownership information is consistent with internal company records and carrying out updated sanctions or negative news screening; and
• Solicitors should also consider appropriate qualifications and limitations to any certificate including, for example, the purpose for which the certificate is given, and whether it can be relied upon, the date of the certificate, and not being obliged to update a supplemental certificate to reflect subsequent changes that come to the solicitor's attention[15].

Template forms of certification letters have been developed by the Business Law Committee and are included in this guidance note. 

A solicitor should carefully consider in all of the circumstances and given the capacity within which the request for certification is made, whether it is appropriate to provide certification of beneficial ownership of a client entity. 

1. Solicitors can access guidance on their own statutory AML duties by visiting www.lawsociety.ie/aml
2. Including for example a financial or credit institution, accountant, tax adviser. S. 25 of the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 to 2021
3. Reg. 5(9), SI 110 of 2019 - an “occasional transaction” means a transaction in relation to which the designated person is required to apply customer due diligence measures under Part 4 of the Act
4. Reg. 8, SI 110 of 2019
5. S.I. No. 110/2019 - European Union (Anti-Money Laundering: Beneficial Ownership Of Corporate Entities) Regulations 2019.
6. See also RBO, FAQs, "What is a beneficial Owner & Other Information"
7. Reg 5(4) SI 110 of 2019. The natural person(s) who hold the position of senior managing official(s). 
8. Requests are typically received from designated bodies when complying with their own anti-money laundering duties. 
9. Regulation 5(8)(a), SI 110 of 2019. 
10. This restricted access is as a result of the CJEU judgment in WM and Sovim SA v Luxembourg Business Registers (joined Cases C‑37/20 and C‑601/20) (Decision)
11. See Paul Egan, "See Who Are You?" Law Society Gazette (July 2023).
12. Visit www.lawsociety.ie/aml and www.lawsociety.ie/sanctions.
13. Regulation (EU) 2016/679 (General Data Protection Regulation)
14. Solicitors are reminded of their reporting obligations in the context of any discrepancy in RBO filings. It would not be appropriate to give the confirmations without the discrepancy being corrected. See also the Law Society's Anti-money Laundering Guidance.
15. See AML: Third party reliance & responsibility for CDD