Roundtable: Business Crime Defence 2012
The International Who’s Who of Business Crime Defence Lawyers has brought together two of the leading practitioners in the world to discuss key issues facing lawyers today.
Chadbourne & Parke LLP
Estudio Durrieu Abogados SC
Who’s Who Legal: According to a recent PwC report, asset misappropriations, accounting fraud and bribery and corruption are still the most common types of economic crime. What types of white-collar crime have been the most common in your jurisdiction over the past year? Are there any industry sectors that are particularly active?
Roberto Durrieu: In order to answer this question, I should make a preliminary comment. We must divide crimes that might be committed by a corporation or its authorities and business crimes where the corporation might be a victim. In the first classification, I may note that, at least in Latin America, the most common white-collar crimes that criminal economic judges and prosecutors follow against businessmen are: money laundering, tax crimes, bribery or public corruption, environmental crimes, and finally the crime of “unauthorised financial intermediation” or other crimes related to the exchange or banking market. However, the most common economic crimes where the victim might be a corporation or legal entity are, undoubtably, the crimes of accounting fraud, misappropriations and – probably – insider trading. In these last types of crimes, the offender is usually a former director or higher authority of the corporation, who engages in dishonest conduct or fraud that causes economic damage to the corporation’s assets.
Abbe Lowell: The areas that have been active in the Washington, DC, Main Justice targets have been and will continue to be: the Foreign Corrupt Practices Act, the False Claims Act, export-import controls and cross-border financial transactions, whether for drugs, fraud or other improper goals. Another new priority is insider trading and related securities fraud. These all now have an international as well as national scope.
Who’s Who Legal: With clients placing greater emphasis on self-reporting and internal auditing, a number of the lawyers we spoke to noted an increase in demand for advisory work. To what extent is business crime defence work now a “built-in” feature of general corporate governance advice in your jurisdiction?
Roberto Durrieu: In the last few years our law firm has improved and developed the advisory and preventive penal service and advice available to corporate clients. The legal services and advice we provide in the are of preventive work are linked to corporate governance measures linked with criminal law punishment and fines. The questions we usually receive are related to codes of conduct, mechanisms to enforce these codes with no challenge to the right to privacy of the workers or employees, asset declarations by public employees, the review and analysis of forensic investigation reports to evaluate the penal consequences of these kinds of internal investigations, review of anti-money-laundering internal manuals and questions related to the bank and fiscal secrecy duties and its possible clash or confrontation with the duty to answer public official requests of information. These are only examples of the many questions and requests for preventive advice that a business crime lawyer may receive in Latin America. The general area of corporate governance advice seems to be the area of criminal law that shows the most spectacular growth.
Who’s Who Legal: With the advent of such legislation as the Foreign Corrupt Practices Act in the US and the Bribery Act in the UK, sources have noted the increasingly international scope of enforcement in the current climate. How are clients responding to this? Is there any further legislation in development in your jurisdiction to increase anti-corruption enforcement?
Roberto Durrieu: Firstly, it is important to highlight that most of the countries of Latin America (eg, Argentina, Brazil, Chile, Mexico, Panama, Uruguay) have signed and ratified, without reservation, most of the international treaties and conventions against private and public corruption. In particular, the anti-corruption conventions already ratified are these: the Inter-American Convention against Corruption (1996); the OECD Convention against Corruption of Foreign Officials in International Transactions (1997), the United Nations Convention against Transnational Organized Crime (2000) and the United Nations Conventions against Corruption (2005). All these are “hard law instruments” for subscribed state parties; that is to say, Latin American countries that ratified these conventions have the duty to respect and adapt their internal or domestic legal standards against corruption to the international standards provided in these international conventions. And, in most cases, this is what happened in most of the Latin American countries. For example, in Argentina, the Congress has just enacted, in January 2012, the “new financial and tax crimes”. Most of these new crimes are directly or indirectly linked and focused on the prevention of private corruption conducts (eg, private fraud, dishonest administration of assets, unauthorised financial intermediation, insider trading). It should be noted that these new financial crimes produced a strong impact in the economic and financial industry in Argentina. Among other aspects, this is because several of the financial conducts penalised in these new crimes were only administrative misconducts or violations in the past. Moreover, these new business crimes in Argentina provide criminal liability against the corporation. That is to say, a corporation or legal entity can be subject to criminal trial or criminal punishment together with the authorities, directors or other persons of the corporation that also committed or participated in the commission of these new financial crimes.
Abbe Lowell: More and more companies in and outside the US are spending more time and resources on compliance. The old saying that a penny of prevention is worth a pound of cure is being pursued. Companies are doing this by adding compliance officers and employees in-house, by having known anti-corruption policies, by having training, and by asking outside counsel to do due diligence on various aspects of a company’s business.
LAW FIRM RESPONSES
Who’s Who Legal: A number of the lawyers we spoke to noted that large multinational law firms are placing greater emphasis on building out their business crime teams in the current climate; in previous years the white-collar disputes space was better suited to smaller, niche practices, as a result of the recession and more globalised enforcement. Has the marketplace diversified in your jurisdiction? Is any particular firm model better suited to serve clients in the current climate?
Roberto Durrieu: Two or three decades ago, business crime law firms were limited to one, two or at most three criminal lawyers who worked in very small, local-based law style and business structures. Their expertise and legal service was focused in the domestic and local service, and most of their clients were individuals (most of them accused of either blue- or white-collar crimes). Nowadays, we can see a strong change and development in business crime law firms in Latin America (and probably across the world). The internationalisation of the practice of criminal law has changed the legal scenario. Corporate governance measures, transnational crimes such as money laundering, financial crimes, environmental crimes and others, and the new theories of ubiquity to establish the territorial jurisdiction of economic crimes, have strongly contributed to this change in the manner and style that a business criminal lawyer must have now. These new crimes and punitive rules simply delegate powers and duties to different agents of the economic activity. Unquestionably, at present the so-called “businessman” has more legal obligations and duties than he used to have. Most of these new legal duties are the new trans-border and economic business crimes! The globalisation and transnationalisation of crimes and punishment have changed the business crime legal service. To better serve the client we were forced to learn business standards equal to the legal standards usually implemented in big and full-service law firms focused in global investments and commercial legal service.
Abbe Lowell: For a fairly long time, large firms have been building national and international white-collar crime practices. After a point, size is not the factor. A firm has to be large enough to take on an assignment of any kind but the difference is then whether it can take on more than one assignment at a time. The smallest firms will devote the same resources to a single-client matter as the larger ones; those smaller firms will just take on fewer assignments. As long as the department of larger firms, as well as the boutiques, are populated with attorneys with experience, size alone will not, or should not, be a factor.