Stand up to fraud investigators, defence lawyers told
White collar crime lawyers welcomed guidance from solicitor chiefs that they do not have to kowtow to fraud investigator demands when clients are being interviewed.
Yesterday The Law Society criticised Serious Fraud Office (SFO) tactics which it said were designed “to limit the role of legal advisers to witnesses in fraud investigations”. The society – which represents 130,000 solicitors in England and Wales – said it was concerned by the SFO’s approach to section 2 interviews conducted under provisions of the Criminal Justice Act 1987. Those interviews take place during the course of SFO investigations and any person with relevant information can be compelled “to answer questions or furnish information in relation to a fraud investigation”.
It is a criminal offence not to comply with a section 2 interview requirement unless the person has a “reasonable excuse”. But white collar fraud defence lawyers have become concerned that the SFO has tried to limit the involvement of solicitors when acting for someone interviewed under section 2. Fraud investigators also ask lawyers to give a series of undertakings in advance of attending interviews that the society claims are too limiting.
Robert Bourns, the society’s president, said a practice note issued to solicitors was meant “to draw our members’ attention to the potential issues raised by the SFO guidance”. “Our practice note addresses concerns about the professional conduct implications of the SFO’s guidance, and stresses the care that needs to be taken when giving undertakings.”
Specialist lawyers welcomed the move. “The Law Society has reminded us that the SFO's guidance does not override a lawyer's professional obligations to the client,” said Louise Hodges, a partner at London law firm Kingsley Napley. “Any interview terms requested by the SFO should be explained to the client and if not considered appropriate or reasonable, a lawyer will now have more confidence in pushing back and negotiating with the SFO, or even giving consideration as to whether the client has a reasonable excuse not to comply with the request at all.”