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SFO Guidance: New requirement for lawyers to ‘certify privilege’

The Serious Fraud Office’s (SFO) Corporate Co-operation Guidance has arrived in the form of a five-page document. In it, the SFO defines co-operation as “providing assistance to the SFO that goes above and beyond what the law requires” and details eleven general practices that companies should consider when preserving material and giving it to the SFO. But while welcome, the five pages seem to offer little in the way of genuinely valuable advice.

Having said that, it is worth making the point that the guidance is obviously better than nothing. There is specific guidance given relating to digital evidence and devices, hard copies and physical evidence, financial records and analysis of them, industry information and individuals. There appears to be a view taken by the SFO that a company could assist the agency by alerting it to aspects of an investigation that the company cannot gain access to or by identifying possible witnesses.

But it feels like a missed opportunity. To be fair, SFO director Lisa Osofsky has gone further with this document than her predecessors — but not far enough. While there is clearly no one-size-fits-all approach to SFO cases, there are aspects of this guidance that are vague or puzzling or give genuine cause for concern.

There is the SFO’s assertion that, during an investigation, if an organization claims privilege it will be expected to provide certification by independent counsel that the material in question is privileged. This has never been mentioned before. And you have to wonder why the SFO thinks this is necessary, bearing in mind the matter will already have been assessed by the lawyers working for the company under investigation.

This is a major new request and something that places a huge onus on those looking to co-operate with the SFO. And it would be of benefit to everyone who may be affected by this if the SFO would come out and give us a real explanation of what the real benefit of this would be — and how it intends to go about enforcing this.

It is arguably the case that many companies may actually prefer this situation to the requirement that privilege should be waived in order to show co-operation; which some senior SFO figures had spoken about previously. But that does not detract from the fact that a very significant demand is being placed on those looking to co-operate with the SFO — and yet that demand comes with very little being said regarding the thinking behind it or the reasons why it is considered to be the very best option to be put forward.

And if co-operation is supposed to be a two-way street then this is hardly an indicator of the SFO’s willingness to play its part. This stipulation can only mean that we have another layer added to investigations that need no more complications. It would be a huge surprise if there was anyone involved in such investigations that believe added complications can only be a good thing.

Which begs the question, why is the SFO insisting on this? It is hard not to view this as a face-saving exercise by the SFO in the wake of its legal defeat over privilege stemming from its ENRC investigation.

The idea of co-operation working both ways is something that also comes to mind when the SFO outlines in the guidance its wish for companies to consult with it before taking steps such as interviewing potential witnesses and suspects. What needs to be considered here is that if and when a company realizes it has a problem — and certainly when that problem is of the type that may attract the attention and interest of the SFO — the situation could well be a matter of the utmost urgency.

That means that there needs to be some explanation forthcoming regarding how a company can be expected to consult with the SFO at a time when the company has a very clear need, to put it mildly, to address the issue that is causing it such concern. Once more, the guidance provokes at least as many questions as it answers.

The guidance also talks of those under investigation providing what the SFO calls information on “industry knowledge, context and common practices” and on “other actors in the relevant market.” This could be a laudable attempt by the SFO to learn more about the situation that prompted the investigation and give those under investigation a chance to voice any mitigating circumstances.

Yet the idea of one actor in the market being given the chance to — using a phrase from Ms. Osofsky’s native U.S. — “rat out’’ looks like an invitation for those under investigation to tell tales to save their own skin. Or, even worse, it could present those being investigated with the chance to mount a campaign of unsubstantiated allegations against others. Either scenario is troubling. Which is why this is another area of the SFO’s the guidance where more explanation is necessary from the agency.

While the guidance will be of use to companies — and is arguably less demanding than many would have feared — it does make the point that compliance with the compulsory process does not, in itself, indicate co-operation. It even goes as far as to say that even “full, robust cooperation’’ will not guarantee any particular outcome. So while it may well be the case that the guidance will help some who come under investigation from the SFO, reading it gives at least as much cause for concern as concrete advice.


Aziz Rahman, pictured above, is the Senior Partner leading International Regulation and Corporate Crime, Fraud and Business Crime, Complex Crime, Civil Fraud and Corporate Investigations at UK-based law firm, Rahman Ravelli. He can be contacted here

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