Corporate lawyer as a defender: practical problems

The criminal risks for companies and shareholders are becoming more and more widespread. Millions of fines and corruption allegations characterize the media landscape, the trend towards compliance and risk management is unbroken and uncertain groups try to protect themselves and their image at all costs. The direct consequence of this development is the increasing need for qualified legal advice, also and especially in the criminal situation. 

Duties and functions of the corporate defender

To investigate the role of a lawyer in the role of a defense lawyer, a distinction must be made between the lawyer representing the company and the lawyer defending the company. In advance: In both roles, the syndicate lawyer is not visible. While the attorney-in-law is a licensed attorney in regular employment with a permanent client, the corporate attorney is an external consultant to a company. 

The corporate defender, on the other hand, is the lawyer who, by a special power of attorney, represents the interests of a company in the criminal law syndic and defense sector. The company attorney as a corporate defense attorney, on the other hand, is a lawyer for the company, who is also able to serve as a lawyer for prosecutors and courts. Only if this distinction is clear, the tasks and functions of the company defender can be understood. 

  • Defense of the company. The most important activity of the corporate defender is the active defense of companies. An active criminal representation should not be used until a preliminary investigation has been initiated. Whenever a company suspects that it is committing offenses or is the victim of criminal acts, it is not just the auditing department that is in demand. Already before the appearance of the public prosecutor’s office, the commissioning of a company defender is advantageous, since he can participate in an internal fact clarification and judge the defendant’s facts subsequently legally and in its consequences. 

The task is to devise a defense strategy that ideally takes into account both the interests of the company and those of the accused. Balancing corporate and individual interests can help show management and employees the benefits of a common defense strategy. Often the individual accused will be reflexively inclined to explain misconduct as a consequence of a prevailing corporate culture; In return, the company will try to portray the violation as an individual and isolated misconduct of an employee.

This path will seldom be successful for both sides, but this is the situation that the public prosecutor’s office likes the most: divide and conquer. Rather, it is often the goal to create awareness among the participants that corporate-related sanctions are always linked to an offense committed by a person, and that the defense of the individual accused acts as a defense of the company at the same time. If a preliminary investigation has already been initiated and there are search warrants or even seizure measures, another important task of the corporate defender is to reassure the employees and to inform the client that everything necessary for defense is being done.

Besides, the corporate lawyer also has the tasks to check whether the legal limits are observed by the investigating officers and even to inform employees about any existing rights to refuse to give evidence. After all, the company’s defense lawyer is also responsible for communications between companies and investigative authorities, and in special cases with the press. For only if the corporate lawyer is involved in the information flow of the company and manages this information to the investigating authorities, the defense of a constantly moving company can succeed.

  • Attacks of the company. In addition to the defense of companies, it is also one of the tasks of the corporate defender to actively file criminal charges on behalf of a company. However, this generally only has the prospect of success if the facts in the sense of a concrete initial suspicion are presented as clearly as possible and supported by evidence. Also, the later monitoring of the procedure by contact with the investigating authorities and information acquisition by inspection of files can and should be the task of the criminal corporate lawyer.