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:


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?


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. 


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[5].  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?


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)[2];

  • 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[3], 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[4] 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[5].

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. 

Next chapter: Precedent Certificate 

 

[1]  View relevant memorandums of understanding available on the website of the AMLCU.

[2] Visit www.lawsociety.ie/aml and www.lawsociety.ie/sanctions.

[3] Regulation (EU) 2016/679 (General Data Protection Regulation)

[4] 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.

[5] See AML: Third party reliance & responsibility for CDD

[6] These may arise in respect of newly incorporated entities established for the purposes of a specific transaction, where the solicitor has been advising in relation to the incorporation of that entity and is advising on the transaction.