Sin categoríaInternal Investigations: the Report That Protects the Company, and the One That Sinks It

The company commissions an internal investigation, the report concludes there is nothing, and that report ends up being the main prosecution evidence against the company. It is not a hypothesis: it is one of the most expensive mistakes in corporate criminal law.

Investigating before the Prosecution: the advantage almost nobody uses

When an indication appears (a report in the whistleblowing channel, a mismatch, a client’s warning), the company has a brief window to know what happened before anyone else knows. That window is worth a lot: it allows knowing the real scope, stopping the conduct, preserving the evidence and deciding with data whether to cooperate with the authorities or prepare the defence. Because at trial the question will not only be what happened. It will be what the company did when it found out. A company that investigated, corrected and sanctioned is in a radically different position from one that looked the other way.

The four limits that must be respected

An internal investigation is not a police search. Whoever ignores the limits ends up with unusable evidence and a lawsuit from the investigated employee. 1. Access to devices and email: possible, but it demands a prior usage policy, proportionality and, in many cases, informing the worker; an indiscriminate imaging is unlawful evidence. 2. Interviews: they are not interrogations; their purpose must be disclosed, and a statement obtained under threat of dismissal is contaminated and useless. 3. Data protection: the investigation processes personal data and must comply with the rules; entire investigations have been annulled here. 4. Professional secrecy: this one deserves its own chapter.

Why to commission it externally: professional secrecy

It is the decisive and worst-understood argument. When the investigation is directed by an external lawyer, the report and the associated communications are protected by professional secrecy: they cannot be seized in an eventual search of the company. When the internal department does it, they are not. That report, with its conclusions, its doubts, its drafts and its internal emails, is company documentation. And it can end up in the hands of the prosecution, turned into the best evidence against it. It is the difference between knowing what happened and being able to decide calmly, or knowing what happened and having your future accuser know it too.

The report that sinks the company

And we reach the mistake from the beginning. A report designed to exculpate whoever commissions it, against the evidence, is the worst document a company can exhibit: it turns a possible exemption for diligence into an aggravation for covering up. An honest report that documents a real problem, followed by correction and sanction, protects the company. A complacent report condemns it.

The three exits

Its conclusions open three paths, all legitimate: correcting and sanctioning internally, proving diligence; reporting and cooperating, with the mitigation this can bring for the legal person; or preparing the defence if the matter will arrive anyway. What cannot be done is choosing without having investigated. That is betting blindly with the company’s assets.