'Companies need well-designed crime prevention programmes'

Leaders League spoke to Del Rosal, Adame & Segrelles Abogados partner Bernardo Del Rosal about a range of issues related to white-collar crime and internal investigations. He stresses that, for a company to avoid committing offenses, it’s vital senior management keeps its ear to the ground.

Publicado Friday, March 20th 2020
'Companies need well-designed crime prevention programmes'

Bernardo Del Rosal


LEADERS LEAGUE. What are the particular sensitivities associated  with representing clients in white-collar crime cases and what is the best way to deal with such issues?

Bernardo Del Rosal. Defending clients in economic crime cases represents, for a specialized lawyer, a series of challenges that are not easy to face. The first one is the complexity of the matter itself, which
normally means you need the assistance of other specialists (such as tax advisors and auditors) with whom you have to work very closely so that they understand the criminal implications of certain economic or financial activities. In addition, you, as a criminal lawyer, must have a detailed understanding of the explanation and justification for such activities.

At the same time, in many such cases, the line between a risky decision and an illegal decision is not easy to draw, and the lawyer’s mission is to try to get the judge to believe that the activity is legal, however daring or risky it might be.

Finally, these types of cases often involve people in senior positions at major companies and the personal, economic and professional ramifications of their involvement in the matter can be devastating, and the effect of such a dramatic scenario is that the lawyer must offer significant personal support to the client.

In your view, what is best practice for handling internal investigations?

The best way for a company to deal with an internal investigation is to ensure the independence of the investigator. What I mean by this is that it is vital that the company involved knows the detail of what happened and who made the decisions. Generally, this is only guaranteed with an independent investigator who, normally, should be a third party from outside the company, thus compelling all areas and departments of the company to collaborate with the investigator.

Once the company has a thorough understanding of the facts and conclusions of the investigation, it is time to decide what steps to take.

Why is it important, as a white-collar crime lawyer, to have good channels of communication with regulators?

The complexity of the issues and the possibility, on many occasions, of very diverse interpretations of regulation obliges us to have fluid contact with the regulators. This helps when it comes to understanding what the regulator – who, in the end, is the one who interprets the regulations – expects from the company so that, if necessary, activities can be redirected to ensure they do not end up in sanctions or criminal prosecution.

What is the best way for businesses to avoid committing white-collar crimes? What is best practice in relation to money laundering prevention, for example?

The best way to avoid committing crimes in a company is to ensure the senior management have in-depth knowledge of the daily operations of the company and its business units, and knowledge of what are its strengths and weaknesses.

This is normally achieved by establishing a solid and effective crime prevention program, which, when well-designed and implemented, immediately detects areas of risk. This applies to any criminal conduct, including money laundering. What happens is that, with regard to money laundering, the legislation is much more precise and comprehensive, making the money laundering prevention plan to some extent easier to implement because it is more law-directed.

What are the key steps that need to be taken when implementing a white-collar crime prevention plan?

The first and most important requirement is undoubtedly the correct identification and assessment of the company’s criminal risks, which will detect the sensitive areas where there is a danger of crime. This, moreover, is a dynamic task, which requires regular updating, especially when the company’s circumstances changes – for example, there are legal changes, or irregular conduct has been detected, the company expands or reduces in size, or key personnel leave the company or join the company. From there, the rest of the tasks are almost a given, such as the revision of the existing controls or the implementation of new ones, and, of course, the creation of policies for the management of sensitive areas or subjects, such as hospitality, sponsorships or subsidies, or relations with the administration or public officials. Of course, all this must involve the company’s staff and the establishment of the proper channels for internal complaints that duly protect the complainant.

What is best practice for establishing internal complaints channels?

Complaints channels present two fundamental problems. First, the management of such channels, because many times a lot of information enters through the complaint channels, of which only a small part is really useful in detecting irregular behavior.

The second problem is the proper protection of the complainant. Therefore, best practice in this sense involves effective management of the complaints received and filtering of the complaints so that only what is relevant reaches the compliance body. There also needs to be proper protection for the complainant so they do not suffer any adverse consequences.