Effective since January of 2014, the Anti-Corruption Law (Law No. 12,846/13) has built a legacy of changes in corporate culture over the past five years. The scenario today is very different from the one observed at the beginning of its enactment, when corruption risks seemed far from the corporate reality, and companies still saw megaoperations of the Federal Police and the Public Prosecutor’s Office as episodes restricted to political agents.
The law has brought companies to the center of legal accountability for acts of corruption and investigations (in particular Operation Car Wash) have spread the idea that integrity risks are too great to be ignored by top management, which has given rise to a race to implement compliance mechanisms and procedures.
Although beneficial, this movement is often erratic. Often, companies are lost in a sea of legal uncertainties, derived, in part, from the absence of a legal framework. Such uncertainty can cause inaction, as in the case of leniency agreements (discussed in a prior article), in addition to risks, as occurs in internal investigations.
Corporate investigations are a primary part of a compliance program, which must rely on three basic principles: prevention, detection, and response to integrity risks. In this sense, a program that has preventive policies will be able to detect problems, which if ignored, can cause the program to become ineffective, in addition to exposing executives and managers to even greater risks arising from their inertia.
This fact is not ignored by business owners, compliance and legal officers, who in recent years have increasingly resorted to corporate investigations in cases of corruption, internal fraud, competitive issues, and labor problems (such as harassment), among others, to guide their decisions or prepare the defense of the company in an investigative or punitive proceeding.
The problem, however, is that corporate investigations are a relatively new subject in Brazil and, because they involve complex multidisciplinary and technical issues, they need to be conducted by skilled and experienced professionals in order to avoid the risk of increasing the problems instead of solving them.
Nevertheless, even for experienced corporate investigators, Brazil’s scenario presents challenges. The absence of legal guidelines fuels uncertainties and demands frequent use of foreign legislation and market practices in order to respond to questions from clients and partners.
Therefore, the approval of Provision No. 188/2018 of the Federal Board of the Brazilian Bar Association (OAB) came at a good time, being that it regulates the exercise of the lawyer's professional prerogative to carry out investigative diligence/procedures.
Although it does not have the strength and definitive nature of a statute and is still highly generic, it assists in drawing up a first normative outline capable of bringing legal certainty to lawyers involved in the investigation of breaches of integrity in the corporate environment and, especially, for their clients.
The provision defined the institute of defensive investigations as the "complex of activities of an investigative nature carried out by a lawyer, with or without the assistance of technical consultants or other legally qualified professionals at any stage of criminal prosecution, proceeding, or degree of jurisdiction, in order to obtain elements for the establishment of a lawful body of evidence, for the protection of their clients’ rights."
This definition comprises relevant issues. The first of those is that, although it focuses on the regulations of an investigation as a counterpoint to a potential criminal prosecution, the provision also includes in its conception any investigation conducted by a lawyer that seeks to gather evidence for the protection of a client’s rights.
This means that any corporate investigation conducted by a lawyer may be included in the concept of the provision, since its primary objective will always be to seek elements of information that allow clients to thoroughly know a fact that may affect their rights, for example, to negotiate a leniency agreement, defend themselves in a sanctioning proceeding, or seek indemnification for damages caused by employees or third parties.
The provision establishes that corporate investigations are activities exclusive to attorneys and, recognizing their multilateral and multidisciplinary nature, provides for the role of technical consultants, exemplified in the text as "experts, technicians, and fieldwork assistants."
Experience in corporate investigation cases shows that the presence of lawyers is relevant for the outcome and confidentiality of the work, but that just as corporate investigations conducted without lawyers generally lose out in terms of organization, technique, utility, and legal certainty, those performed only by lawyers can sometimes end up being incomplete.
Good corporate investigation lawyers should be specialized technical experts and excellent project managers, but they also need to be able to identify where they need specialized help, which is often the case with technology and forensic accounting services.
In this sense, the inclusion of the role of technical consultants in the provision may be its most relevant aspect, especially as it extends to those professionals the right and duty to confidentiality, pointing out that, as advisors to a lawyer, they "do not have the duty to inform the competent authority of the facts investigated” and that "any report and disclosure of the result of the investigation shall require the express consent of the client."
Such protection is fundamental not only for the proper professional practice of the consultants (for whom the absence of confidentiality brings about profound risk exposure) but also for the security of clients who engage the investigation.