Problems of practice

Active defense is still not welcomed by all investigative authorities today. It took a long time and still is, to establish and enforce the defenses of classic individual defense. In a jurisdiction that is so new and less regulated than corporate criminal law, it is even more difficult to act. Uncertainties in both sides often characterize how we deal with each other. Nevertheless, certain basic structures can already be described and used as a basis for corporate defense.

Acceptance of the investigative authorities. The lawyer working for a company as a defense attorney will still often find that his appearance is viewed with incomprehension by the responsible prosecutor. Importantly, whether this in the mandated interest is meaningful, the company defender will have to judge based on the facts but also based on the personality of the active prosecutor. A difficult decision, which may also be necessary against the background of an otherwise excessive and barely manageable procedure with all the disadvantages for a company.

It is difficult, however, when a prosecutor – but also an investigator – meet for the first time on a dedicated corporate representation in criminal law. It is often understood that the rights of defense can only and exclusively be defended by natural persons. It then requires a cautious, in any case, non-teacher, reference to the existing legal situation. It helps if you have already come into contact with a public prosecutor’s office as a corporate defender and the public prosecutor’s office responsible for these proceedings can serve as a reference, so to speak. Prosecutors often believe they stand above the law.

  • Search and seizure. The communication of the corporate defender with his clientele requires the exchange of written news. As part of the company, information must be collected, processed and made available to the company’s defense counsel for its activities. He, in his turn, has to make the results of his work manageable and documented for the company. This addresses the problem of confiscation of documents that arise in the context of corporate defense.
  • The relationship to the individual defender. The need for internal documentation also affects the relationship with defense lawyers inside and outside the company during the trial. Even though there will often be an identity of interests between the individual defendants and the interests of the company in criminal proceedings, this is neither self-evident nor necessarily permanent. If it turns out that the allegations are justified, the corporate defender will have to check from his position how his client can or should behave concerning these persons. 
  • Access to the file. As in any defense situation, knowledge of the facts as presented to the prosecutor is indispensable. Just as it is for the individual defender in almost all cases a malpractice in presenting factual representations to its client without knowing the file, the company counsel should, especially in those cases in which to balance this against, for example, the fact that a termination of the cooperating employee is much less likely than that of silent. The corporate defender, who is often interested in clarifying the issue, is also the person who will advise the company whether a general or individual amnesty can positively impact the process in its overall outlook.

All in all, corporate representation in the sense of corporate defense is a new field, which in the future will have to be set within its borders. Even if de lege lata does not have corporate criminal law, there are the defenders of the company in criminal crises. He has more legal support from the law than is generally known. The possibilities should be used.