Post by xyz3800 on Feb 28, 2024 3:37:58 GMT -7
Compliance is a living response to the new scenario implemented by the Anti-Corruption Law. We can define it as a system of specific internal rules and procedures, aiming to prevent, monitor, identify practices prohibited by law and punish these events. The competent implementation of a compliance program may mitigate or even exempt the liability of companies and administrators in cases of corruption. This phenomenon explains the growing search for effective compliance programs , aiming to reduce the exposure of the corporation and its executives to businesses and people involved in illicit activities, as well as ensuring all possible legal benefits for the identified cases. Regarding internal investigations arising from compliance programs , there are many questions that deserve reflection and positioning before problems arise.
When should the investigation be launched? Who should conduct the investigation? Can an employee refuse to collaborate? Is there a duty of confidentiality in investigations? Who can invoke secrecy? The allocation of professional secrecy regarding privileged communications is relevant, as it will define whether the company and its employees are prohibited, have the right or have the duty to pass on information and investigation results to the Exit Mobile Number List authorities. Whenever the investigation is conducted by a lawyer performing a private role, in this case consultancy or legal advice (which is clear when it comes to an external lawyer hired for this purpose), the communications will be privileged and covered by confidentiality. That is, the lawyer who conducts the acts cannot hand over documents and investigation conclusions to the authorities against the company's will, even if formally subpoenaed.
This is because the client, for the purposes of protecting the confidentiality of communications, is the company, and not the executive who is being interviewed and providing potentially self-incriminating or incriminating information to third parties. The direct implication of this client-lawyer structure is that the lawyer who conducts the executive interviews will have the duty to pass on the information to the client holding the confidentiality of privileged communications, the company, which may, at its sole discretion, provide the content to public authorities. But if it is not clear to the interviewee that the lawyer acts in the capacity of exclusive representative of the company, allowing the executive, in good faith, to believe that the lawyer also represents him and his statements are covered by professional secrecy, it is possible that the executive challenges in court the company's ability to share its statements with the public authorities, preventing the company from obtaining benefits granted by the Anti-Corruption Law.
When should the investigation be launched? Who should conduct the investigation? Can an employee refuse to collaborate? Is there a duty of confidentiality in investigations? Who can invoke secrecy? The allocation of professional secrecy regarding privileged communications is relevant, as it will define whether the company and its employees are prohibited, have the right or have the duty to pass on information and investigation results to the Exit Mobile Number List authorities. Whenever the investigation is conducted by a lawyer performing a private role, in this case consultancy or legal advice (which is clear when it comes to an external lawyer hired for this purpose), the communications will be privileged and covered by confidentiality. That is, the lawyer who conducts the acts cannot hand over documents and investigation conclusions to the authorities against the company's will, even if formally subpoenaed.
This is because the client, for the purposes of protecting the confidentiality of communications, is the company, and not the executive who is being interviewed and providing potentially self-incriminating or incriminating information to third parties. The direct implication of this client-lawyer structure is that the lawyer who conducts the executive interviews will have the duty to pass on the information to the client holding the confidentiality of privileged communications, the company, which may, at its sole discretion, provide the content to public authorities. But if it is not clear to the interviewee that the lawyer acts in the capacity of exclusive representative of the company, allowing the executive, in good faith, to believe that the lawyer also represents him and his statements are covered by professional secrecy, it is possible that the executive challenges in court the company's ability to share its statements with the public authorities, preventing the company from obtaining benefits granted by the Anti-Corruption Law.