Confidentiality Requirements in Internal Corporate Investigations.
The POV of the Octopus Investigative Institute’s private investigator.
The need for absolute confidentiality is the most sensitive aspect that my Octopus detective agency in Cassano d’Adda must address when companies call upon us to support internal investigations, whether triggered by whistleblowing, actions by directors and executives, or other risk management initiatives.
In some cases, it is possible, and indeed recommended, to resort to criminal defense investigations as provided for by the Code of Criminal Procedure and introduced by Law 397 of December 7, 2000. This ensures professional secrecy between the members of the committees responsible for internal corporate investigations and the lawyer coordinating them, as well as between the lawyer and the private detective assisting them. This is also why all private investigators at the Octopus Investigative Institute in Cassano d’Adda are licensed for criminal defense investigations.
However, one should not blindly rely on the inviolability of communications between client-lawyer and lawyer-private investigator during criminal defense investigations. It is undeniable that certain prosecutors and judicial police officers have a bad habit of considering legal privilege between lawyer and client optional; and, even more optional, that between lawyer and his consultants, including criminal private detectives.
I can write this with full knowledge of the facts, as a criminal private investigator who has been involved in criminal defense investigations since the founding of my second private investigation agency, Octopus, in Milan; and in criminal investigations since 1980, when the role of the criminal private investigator did not yet exist and I collaborated in complete confidentiality with leading criminal lawyers.
Because of my “clandestinity” beginnings as a private criminal detective, and the fact that, more than two decades after the introduction of defensive criminal investigations, prosecutors’ offices are still struggling to abandon the old inquisitorial approach, I have never fully trusted legal privilege in Italy.
In a murder trial, in which I was the criminal private investigator for the defendant’s defense attorney, while examining the case file, I discovered that some attorney-client communications had not only been intercepted, but even transcribed and filed. This was not the only time I witnessed how poorly tolerated or even ignored legal privilege between client and lawyer was by prosecutors.
These “oversights” by prosecutors occur primarily in the initial phase of judicial investigations, which is the time when diligent and farsighted administrators or managers most frequently ask my Octopus Private Investigation Office to conduct preventive criminal investigations. Having received these assignments, I am partly reassured by the fact that the company has had the prudence to rely on a lawyer to take advantage of professional secrecy. However, I prefer to protect the clients of my Private Investigation Agency, Octopus, through strict security protocols and modern technologies rather than relying on so-called legal guarantees.
Professional privilege between client and lawyer and between lawyer and private investigator does not protect against abuse by certain prosecutors.
How to protect yourself from the intrusiveness of institutional investigators
and from media scrutiny, fueled by leaks of trial information.
Advice from a criminal private detective and a corporate private investigator.
Even under the protection of professional secrecy, it is best to take the following precautions to maintain the confidentiality of communications and prevent any abuse by the public prosecutor’s office:
- Use only messaging apps that cannot yet be intercepted by prosecutors’ technicians and that can be completely deleted remotely at any time, using any of the communicating smartphones.
Early one morning, a client of my detective agency, Octopus, was arrested after his home was searched and various items, including his smartphones, were seized.
The client was innocent of the charges against him; in fact, he had initiated preventive defense investigations, contacting the lawyer I worked for, specifically to stop the criminal conduct being carried out at his firm, but behind his back.
The lawyer called me, concerned that the prosecution might read our messages and learn his defense strategy in advance, but I had already deleted the group chat and private chats with the client as soon as I saw the news in the media. I pointed out to the lawyer that there was no trace of our communications on his smartphone either, and he was relieved.
- Avoid meetings in places where the judicial police have had access and may have bugged the premises.
- Never speak in vehicles, which are legally recognized as having a lower expectation of privacy and are therefore easier to intercept, both legally and technically.
- Never carry smartphones with you during particularly important and confidential meetings.
- Do not store any documents important to your defense, whether in paper or electronic format, in places that could be subject to an unlawful search.
Especially immediately after the introduction of criminal defense investigations and the use of private criminal investigators, there were cases of unlawful searches of private criminal detective agencies, resulting in the seizure of documents. These documents were extensively read and studied by the judicial police before the lawyer was able to obtain their return.
For this reason, I have become accustomed to not keeping my clients’ files either in the office or at my residence.
- During the search, seek the assistance from your solicitor or a trusted person in the absence of the lawyer. However, keep in mind that if this “trusted person” might be suspected of involvement in the crimes for which the search is being carried out, the police may proceed to search the vehicle in which he or she arrived.
The Octopus Investigations Agency in Cassano d’Adda does not keep any documents at its headquarters, to prevent unlawful searches to the detriment of its clients by judicial authorities.
What to do when the internal corporate investigation and related private or criminal investigations uncover ongoing crimes?
It all depends on the seriousness of the offences discovered and the ability to put an end to them without resorting to the authorities. I would say that this is more a question to be addressed on a case-by-case basis to the solicitor assisting the company.
Having followed the protocols and procedures established by law, as in the case of whistleblowing, allows you to approach the authorities with greater peace of mind.
In any case, as a private investigator, I always advise my clients to:
– Always acquire and keep evidence of their willingness to cooperate with the authorities, through interceptions between those present, screen shots, etc.
– Never hide anything learned, especially if it is destined to be discovered anyway.
– Make available to investigators all the (legitimate) investigative tools already in place through the intervention of the corporate private investigator.
A trivial case of corporate absenteeism entrusted to my Octopus Private Investigations Office revealed the use of company vehicles in a drug trafficking operation. When my client company notified the authorities, I communicated to the police, who had taken charge of the investigation, the passwords to consult the satellite trackers I had placed under the vehicles.
When a company discovers crimes within its organisation, in the absence of comprehensive and exhaustive legislation, recourse to the authorities is often a leap in the dark with no guarantees.