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#1142773 - 03/10/09 03:53 PM Re: Federal Raid... Employee luvflipflops
smash Offline
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Joined: May 2004
Posts: 331
Texas
Originally Posted By: beachgirlatheart
Also, when we did our research and then listed the information and back-up docs used that we had that we thought would be helpful/necessary in an investigation (ie - property address, loan docs, co-signers, referrals, etc) he said that we were doing the "cops jobs" and we should keep it short and sweet. Which is completely the opposite of what the IRS Review guy and the FinCEN just said at the Top Gun conference.


I would simply give your CEO a copy of the FinCEN SAR Narrative guidance found here: http://www.fincen.gov/news_room/rp/files/sar_guidance_narrative.pdf.
I would add that the BSA exam manual instructs BSA examiners to review SAR narratives to see if they meet the standards set out in the above guidance.

You and I are both going to give a little extra effort to help law enforcement, but the CEO doesn't have to know it. Make the SAR narrative a matter of regulation and guidance. Don't tell the CEO, "We just put in the SAR all the information we thought would be helpful to law enforcement." That sounds like you are going overboard, like you're doing the "cops job." Instead, "We just put in the SAR everything we were required to according to FinCEN guidance." How can he argue with that? (OK, he can argue with it, but the argument is based on regulatory matters, and not your opinions.) It's all in the way you say it!

Forgive my forthrightness. I hope I did not offend. Didn't mean to.

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#1142796 - 03/10/09 04:07 PM Re: Federal Raid... Employee smash
luvflipflops Offline
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Joined: Nov 2005
Posts: 150
on a beach somewhere
No...no offense taken! Thanks for the individual responses. Great information especially the last response re: "it's all in the way you say it". I should've said things in a different manner and was flustered and not prepared for him to go down that path of questioning a lot of what my dept is doing.

As far as your second post question, there wasn't really a txn that was suspicious without what the employee had provided to us re: a fed raid. Once we knew what was told to us, we looked at the account relationships, found one thing that was odd and then connections to other people that have suspicious txns. So we are looking into the other accounts for separate SAR filings.

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#1142858 - 03/10/09 04:50 PM Re: Federal Raid... Employee smash
Retread Offline
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Retread
Joined: Oct 2003
Posts: 2,548
Southeast
There is no problem with sharing a SAR with outside counsel since they are an agent of the bank. However, I agree with rlcary. Why muddy the water and make things complicated? Unless you think the bank will be sued, why involve outside counsel? Even if you are sued, giving SAR access to outside counsel can sometimes be dangerous.
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#1142868 - 03/10/09 05:02 PM Re: Federal Raid... Employee Retread
smash Offline
Gold Star
Joined: May 2004
Posts: 331
Texas
I agree. My response came from the perspective that she already fought the fight and now has to comply with the master's wishes. When a CEO tells you to share them with legal counsel, Retread, don't you feel obliged to do so? I can tell him I don't think it's wise, but didn't you know that all CEO's are wiser than us peon BSA Officers??? beachgirl's CEO sounds like one of those.

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#1143061 - 03/10/09 07:57 PM Re: Federal Raid... Employee smash
edAudit Offline
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edAudit
Joined: Jul 2008
Posts: 4,714
You are here
I would ask How much is the outside counsel chargine per hour to review a SAR? They generaly will charge over the retainer fees.
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#1143866 - 03/12/09 03:08 AM Re: Federal Raid... Employee edAudit
bethel41 Offline
Member
Joined: Oct 2008
Posts: 53
Midwest
If you do end up in a lawsuit, any evidence provided to your attorney will be shared with the defense attorney as discovery evidence--and that would be a big no no. This came up at our bank. You can share the information that was in the SAR--just not the SAR or the existence of a SAR. This specific instance may not ever have a possibility of a bank-involved lawsuit, but we made a blanket policy that SARs would not be shared with legal counsel.

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#1144525 - 03/13/09 02:02 PM Re: Federal Raid... Employee luvflipflops
Elwood P. Dowd Offline
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Elwood P. Dowd
Joined: Aug 2001
Posts: 21,939
Next to Harvey
Quote:
...he is asking for chapter and verse where it states specifically that we cannot share with an outside legal counsel.


You won't find anything like that in any official source. "SAR confidentiality" has taken on a life of its own in the minds of many bankers; it means far less than most bankers think it does.

Banks can set their SARs to music and sing them at their employee meetings if they want to. Yes, it would be both reckless and useless, but it is not prohibited.

The statute prohibits notifying the subject of the SAR. The regulatory agencies regs merely say "SARs are confidential." There isn't anything official that says you cannot share SAR filings with employees and advisors; that type of sharing would still be confidential. (Proposed regulations on SAR confidentiality will not change this; they do not address how SARs are used within the depositary institution.)

Personal opinion very strongly held: The real "safe harbor" isn't about the fact that you are guaranteed to win a law suit instigated by the SAR subject. It's about not getting sued to begin with. The best way to avoid being sued is to make certain the subject never finds out about the filing. The best way to make certain the subject never finds out about the filing is to make certain that the smallest possible number of people know about the filing.

So far, the people with the really big mouths are those with law enforcement agencies. Maybe the proposed regulations will help them in zippering their lips.

As far as showing a SAR to outside legal counsel it's fine, but the overwhelming query should be a simple "Why?" As rlcarey notes, it has already been filed. There isn't one lawyer in 100 capable of rendering a competent legal opinion about whether the filing was required or voluntary, but either way it's already been filed so the point is moot. If the content portends some future legal problems for the bank, then it does make sense to let your legal counsel know what's going on. If it is handled correctly, it will be privileged communication and it will not be subject to disclosure.

Quote:
...he said that we were doing the "cops jobs" and we should keep it short and sweet.


The FinCEN ppt presentation used at Top Gun is the most detailed description I know of regarding how specific you should be in describing supporting documentation. He should watch it. Give him some popcorn and a clue: Your bank is part of the law enforcement community in the United States. The fact that you were drafted rather than volunteered is of no consequence.
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