Wednesday, August 12, 2020

cultural property lawyer ethics opinion

Does a potential client seek to retain legal counsel to commit an antiquities trafficking crime? The cultural property lawyer needs to find out.


One way cultural heritage traffickers cover their tracks, wash dirty money, and blanket themselves with business legitimacy is by hiring reputable professionals to manage seemingly lawful transactions, which is why accountants, freight forwarders, customs brokers, conservators, dealers, auctioneers, academics, art advisors, and appraisers may be solicited to handle looted and smuggled artifacts

Because traffickers and cash launderers may also try to retain legal counsel to move contraband archaeological, ethnological, and religious objects into the antiquities market, a cautionary ethics opinion issued by the American Bar Association (ABA) should prompt cultural property lawyers and customs attorneys to ask probing questions.

"A lawyer may ... face criminal charges or civil liability, in addition to bar discipline, for deliberately or consciously avoiding knowledge that a client is or may be using the lawyer’s services to further a crime or fraud," writes the ABA Standing Committee on Ethics and Professional Responsibility, which issued guidance in response to concerns about money laundering and counter-terrorism enforcement. Formal Opinion 491, published on April 29, instructs attorneys that "Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in a transaction or other non-litigation matter the lawyer 'knows' is criminal or fraudulent."

The opinion emphasizes that a lawyer cannot remain ignorant of a transaction, warning that it is "a lawyer’s obligation to inquire when faced with a client who may be seeking to use the lawyer’s services in a transaction to commit a crime or fraud." The ABA committee makes clear that "[f]ailure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard of the Rule."

Due diligence therefore is critical. 
When a potential client calls to ask, "Can you help me sell ancient art stored in an overseas freeport by setting up a U.S. import company, retaining a customs broker to handle the paperwork, creating a shell corporation to offer the objects for sale, and using the law firm's trust account to handle the financial transactions?," the lawyer's immediate response must be to ask scrutinizing questions before agreeing to represent the prospective client.


Photo credit: freeimages.com /Henk L  and Pat. 
Text and original photos copyrighted 2010-2020 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, stolen relics,smuggled antiquities, illicit antiquities, museum risk management, and archaeology. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship. Blog url: culturalheritagelawyer.blogspot.com.

Monday, August 3, 2020

Grand jury indictment from federal court in California claims importer falsely classified ancient archaeological artifact.


U.S. v. AlCharihi mosaic
Mosaic seized by FBI and HSI from Mohamad AlCharihi.
Skilled prosecutors keep cases simple. So when 
U.S. Department of Justice (DoJ) attorneys secured an indictment last month in an antiquities trafficking case, they focused on one statute only, Entry of Goods Falsely Classified, 18 U.S.C. 541.

The straightforward charge, handed up by a grand jury sitting in the Central District of California, alleges that 
Mohamad Yassin AlCharihi (a/k/a/ Mohamad al-Sharihi), on August 13, 2015,
knowingly claimed and caused to be claimed, that he was importing a shipment of a mosaic and other items valued at $2,199, when, in fact, defendant AlCharihi knowingly imported a mosaic that itself was valued at more than $2,199, and defendant AlCharihi knowingly misrepresented the quality of the mosaic, including what the mosaic depicted.
The indictment in U.S. v. AlCharihi (20-cr-00307) simply is an allegation based on probable cause. The defendant is presumed innocent, and prosecutors bear the burden to prove the defendant's guilt beyond a reasonable doubt.

The criminal investigation began approximately five years ago when the centuries old mosaic and other objects were imported into the U.S. A bill of lading, offered by AlCharihi in court papers, documented their ocean borne transport and their classification under Harmonized Tariff Schedule of the U.S. 6908.10 and 6802.91, codes that describe ceramic mosaic tiles and worked monumental or building stone. The
 bill of lading characterized the imports as "GARDEN ORNAMENTAL VASE" and "MOSAIC TABLE."

Thursday, March 5, 2020

Archaeological site at El Guayabo National Monument, Costa Rica
Cost Rica has requested a cultural heritage agreement with the United States. The Cultural Advisory Committee (CPAC) will meet on April 15, 2020 to consider this request and invites public comment.

Go to regulations.gov and type in docket DOS-2020-0011 to submit written remarks by April 1, 2020.

The public portion of the CPAC meeting--to be held on April 15 at 2:30 pm ET--will be viewable on Zoom. Attend by clicking here.

In December last year, Costa Rica made a formal request for U.S. import restrictions on at-risk archaeological material pursuant to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The terms of the Convention on Cultural Property Implementation Act (CPIA), the federal law that implements the 1970 UNESCO Convention in the United States, now require CPAC to consider the petition and supply the State Department with advice.

Photo credit: 
AndSalx95 Creative Commons
Text and original photos copyrighted 2010-2020 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, stolen relics,smuggled antiquities, illicit antiquities, museum risk management, and archaeology. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship. Blog url: https://culturalheritagelawyer.blogspot.com.

Monday, January 20, 2020

The Cultural Property Advisory Committee (CPAC) meets this week to discuss requests by Turkey and Tunisia for Memoranda of Understanding (MoU) with the United States to establish American import controls covering certain archaeological and ethnological materials in jeopardy of pillage.

The public portion of the meeting will be held Tuesday, January 21 at 1:30 pm ET. You can observe it live by watching online at https://eca-state.zoom.us/j/909159562.

The requests submitted by the Government of the Republic of Turkey and the Government of Tunisia invoke Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The U.S. is a party to this agreement, which is implemented under federal law by the Convention on Cultural Property Implementation Act.

The country requests have attracted nearly 100 written public comments, which describe the extent of archaeological site looting in the two countries, articulate collector and dealer concerns that ancient coins will be counted as archaeological material subject to U.S. import controls, and ask the question of who owns cultural property.

CPAC, meanwhile, welcomes recently appointed chairman Attorney Stefan Passantino and new members Attorney Anthony Wisniewski and CHL author Attorney Rick St. Hilaire to the committee.

Text and original photos copyrighted 2010-2020 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, stolen relics, smuggled antiquities, illicit antiquities, museum risk management, and archaeology. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship. Blog url: https://culturalheritagelawyer.blogspot.com.