Michelle de Kluyver is a partner in Addleshaw Goddard’s global investigations team. Michelle has led many complex and cross-border, financial crime investigations relating to corruption, financial sanctions, money laundering, fraud and regulatory breaches. She is an expert on directors’ duties and compliance and has worked on investigations involving enforcement authorities globally. Her investigation experience extends to the UK, Europe, the USA, South America, the GCC, China, India, South East Asia and Africa.
What do you enjoy most about practising in the area of corporate criminal law?
Getting the finest outcomes for clients ranks top of the list – the stakes are very high. I enjoy working with the very top tier of the criminal and regulatory bar and also with ILAs. London has a community of very talented defence practitioners and barristers.
In what ways has the growing importance of investigations governance impacted your approach to corporate investigations?
Investigations governance is entwined with substantive defence rights (such as adequate and reasonable procedures) and also drives how relevant stakeholders discharge their wider legal obligations. It is crucial to ensure independence, appropriate flows of high-quality management information, and the right level of engagement.
What challenges is the debate around the doctrine of privilege in the UK currently posing for lawyers handling cross-border investigations?
It complicates the structuring of investigations and builds in uncertainty for clients about whether their work product is privileged. The SFO has been talking about giving cooperation credit to companies that waive privilege as one way of dealing with this problem. If it adopts that approach, I think it’s important to acknowledge that maintaining privilege can be consistent with cooperation. There can be a temptation to think that if documents are withheld, they must be unhelpful to the company – but that assumption is often wrong.
To what extent has the market moved away from the traditional set-up of some firms only defending corporates and other firms only defending individuals?
In the area of financial crime, the distinction is being eroded. The core expertise is widely spread. The increase in corporate crime and regulatory issues has led to many eminent criminal and regulatory practitioners moving into corporate law firms. Some pure criminal law firms are acting for corporate clients. The City firms have developed and deepened their own expertise through a combination of strategic hires and experience. There are also numerous prosecutors who have made very successful transitions into private practice.
In your opinion, what does the future hold for deferred prosecution agreements (DPAs) in the UK market?
I think there will be more DPAs and more multi-jurisdictional DPAs, especially if the bar for corporate criminal liability for financial crime is lowered, which seems increasingly likely. DPAs drive compliance and cooperation, and deliver a high degree of certainty. There are tricky corners to navigate, and the question of how to achieve fairness for individuals is still being worked out.
What is the most memorable matter you have worked on?
I can’t name it, but it involved multiple authorities in multiple jurisdictions. The most memorable parts were: successfully challenging very aggressive pre-charge conduct; succeeding on a fundamental point of principle that had not been decided before; working with great ILAs, brilliant barristers and an amazing team; and getting an excellent result in challenging circumstances. It was stressful, and at times the pace was relentless, but it was also deeply satisfying.
What advice would you give to younger practitioners looking to practice in the field?
Throw yourself into the most challenging cases. Take an interest in the laws of other jurisdictions. Get to know your peers in the white-collar community.
The “excellent” Michelle de Kluyver is hailed by respondents for her in-depth knowledge of EU sanctions law and adept handling of complex, cross-border issues.
Michelle de Kluyver is a partner in Addleshaw Goddard’s Global Investigations group. Michelle has extensive experience in complex, cross-border financial crime investigations including bribery and corruption, financial sanctions, money laundering and fraud and also advises clients on related compliance issues. Michelle is an expert on directors’ duties.
Michelle is listed in WWL: Business Crime Defence, WWL: Investigations (Corporate), WWL: Trade & Customs - International Sanctions, Chambers and Partners: Financial Crime: Corporates and The Legal 500: Regulatory Investigations and Corporate Crime. WWL says: “Michelle de Kluyver is distinguished as “an excellent practitioner who is at the top of her game” and is “very deserving of her strong reputation”. She is “absolutely excellent” compliment sources who note she “always gets results”.