Confidentiality of communication with an attorney when conducting internal investigations as part of the right to defence
Abstract
This chapter deals with one selected aspect of the right to defence, one of the fundamental rights of the criminal procedure. The author focuses on the so-called internal investigations in legal entities, which serve, inter alia, to identify gaps in compliance programs of legal entities.
It is not uncommon for such an investigation to be carried out by an attorney-at-law or a law firm. Are the results of such an investigation part of the protection of attorney-client privilege, even if the accused legal person is represented in later criminal proceedings by another attorney? Should law enforcement authorities have access to the results of previous internal investigations of a legal entity? The author was inspired by the recent and widely discussed case-law on the Jones Day case in Germany.
The chapter serves as a basic insight into this problematics, which the author deals with in connection to issues of criminality prevention within legal persons.