NAVACELLE translated, for information purposes, the Vademecum for Attorneys tasked with carrying out an internal investigation, issued by the Paris Bar on July 12, 2017.
Vademecum for Attorneys tasked with carrying out an internal investigation
Through a resolution passed on March 8, 2016, the Paris Bar Council considered that internal investigations fell within the scope of an attorney’s professional tasks (excluding the activity of research and investigation provided for by article L621.1 of the National Security Code), under the scope of article 6.2 al. 5 of the National Regulations of the lawyers’ profession (RIN) (expertise activity), or under the scope of articles 6.1 and 6.2 al. 2 of the RIN (assistance and counselling activities).
In accordance with this resolution, recommendations were made with respect to this activity for the purpose of their incorporation in the RIBP.
Some of these recommendations are general in scope (1), others are specific to internal investigations carried out in the context of the assistance and advisory activities of attorneys (2) or to the internal investigation carried out by an attorney in his/her capacity as an expert.
1. General recommendations
An attorney tasked with carrying out an internal investigation must comply with, under all circumstances, our essential principles (article 1.3 RIN). He/she will comply with the essential principles of conscience, independence, humanity, loyalty, delicacy, moderation, competence and prudence. He/she will refrain from exerting pressure on individuals he/she interviews;
The attorney will execute, with his/her client or the persons who appointed him/her, a contract which, in addition to the determination of costs, will define the scope of his/her retention;
Before any contact with third parties for the purpose of carrying out the internal investigation, he/she will explain his/her role and its non-coercive nature; inform them that they may not claim any attorney-client privilege with respect to exchanges and that what they say may be transcribed in his/her report in whole or in part.
2. Specific recommendations for the activity of internal investigation carried out by an attorney in the context of an assistance and counselling activities (articles 6.1 and 6.2 al. 2 of the RIN)
An attorney tasked with carrying out an internal investigation in the context of an assistance or counselling activity may be the usual attorney of the client who commissioned him/her or an attorney who has not previously worked for him/her;
In all circumstances, he/she will mention to the individuals he/she interviews in the course of the internal investigation that he/she is not their attorney but that he/she acts on behalf of the client who retained him/her to carry out this investigation;
He/she will explain to interviewees and to other persons contacted for the needs of the investigation that the attorney-client privilege binds him/her but not the client. Therefore, what the interviewee says what they say and any other information gathered during the investigation may be used by his/her client, so may be the report he/she may provide to his/her client.
He/she will inform the interviewee that he/she may be assisted or advised by an attorney when it appears, prior to or during the interview, that the interviewee may be held accountable for any wrongdoing at the outcome of the investigation;
When a statement is transcribed verbatim, he/she will offer to the interviewee an opportunity to review the statement and to sign it. He/she will refrain from providing him/her with a copy if the preservation of the confidentiality of the investigation requires otherwise – with regards to French or foreign rules on confidentiality -;
He/she may assist his/her client in a mutual agreement procedure or in a dispute, related or subsequent to the internal investigation, but will refrain from representing his/her client in such a procedure directed against an individual that he/she has interviewed during the internal investigation.
3. Specific recommendations for the activity of internal investigation carried out by an attorney in the context of an expertise activity (article 6.2 al. 5 RIN)
An attorney tasked with carrying out an internal investigation, in the context of an expertise activity, will not accept this mission if he/she already is the counsel, usual or not, of the person(s) retaining him/her;
He/she will mention that in the context of an expertise mission, the internal investigation is not subject to the attorney-client privilege; he/she will ensure that documents, correspondence and other exchanges related to this investigation are split from the matters he is tasked with carrying out as an attorney, in order to preserve the attorney-client privilege by which he/she is bound in this capacity.
When a deposition is transcribed verbatim, he/she will offer the interviewee an opportunity to review the statement and to sign it; he/she will provide a copy upon the interviewee’s request, except in specific circumstances.
He/she will refrain from representing one of the parties in any procedure relating to or arising from the internal investigation, even in an amicable procedure.