Many organizations are now turning to external experts to investigate internal misconduct and having such internal investigations conducted by major international law firms. However, what at first glance would appear to be the logical and most efficient solution often proves to be both technically and legally complicated in practice.
There are a variety of competing interests that must be taken into account: the requirements of the investigative and tax authorities on the one hand and the company's duty of care toward its employees on the other. Criminal law collides with employment law, rights to refuse information under criminal law collide with duties to cooperate under employment law. Then add to the mix the fact that different legal systems (continental versus Anglo-American, Germany versus the U.S.) may come into play and quite possibly an increased media interest in the outcome of the investigation.
All of this raises a host of legal issues which are the subject of heated debate in the literature and in practice, but which in the end remain largely unresolved.
We advise companies on how to structure and implement internal investigations, as well as individuals who are questioned in the context of those investigations. And these involve some of today's most high-profile internal investigations. As criminal lawyers, it is particularly important to uphold criminal law standards in this regard.
In our view, internal investigations and fact finding must not be conducted "at any cost". Where constitutionally guaranteed rights of individuals (nemo tenetur se ipsum accusare/"no one is bound to incriminate himself") are affected, the company's interest in fact finding – just as that of the investigative authorities – must take a back seat in individual cases. Private internal investigators may not be given broader rights than the police and public prosecutors.