A criminal lawyer, even better if supported by an experienced communications consultant, may play a key role in providing the right answers to a white-collar investigation from its very beginning. Appointing an independent criminal lawyer is also crucial to keep attorney-client privilege: in fact, in Italy communications between top management and in-house legal departments are not formally covered by the mentioned privilege, although the European Court of Justice (ECJ) has recently recognised the substantive nature and broad scope of the privilege itself. 14 LAWYER MONTHLY JANUARY 2024 phases of an investigation could prove very costly down the road, limiting options or potentially subjecting a company to greater penalties. A carefully crafted first response plan should consider the scope of the crisis, the chance to perform an internal investigation, and the people in charge of coordinating any communication with the public prosecutors or other parties. Criminal investigations in Italy are generally secret, so any information must be treated accordingly, including relations with press. However, it is also true that there are, unfortunately, leaks of confidential information, often originating from judicial offices themselves. Consequently, media relations shall be handled with deep awareness and discretion, since the greatest risk for a company, when it is challenged for having committed a crime, is reputational even before strictly legal. suppliers, in addition to a proper profiling, listing, and cataloguing of them, as well as the creation of company database of authorised partners. It should be highlighted that the Corporate Criminal Liability legislation (Law No. 231/2001) also applies to foreign companies if the offence is committed on Italian territory (even by an Italian branch of the foreign entity). However, companies may be exempted from liability if, prior to the commission of the offence, they have adopted and effectively implemented a suitable compliance model to prevent offences of the same type as the one committed (obviously, the individual will remain liable on his or her own for the offence committed, suffering the appliable penalty set forth by the law - usually a custodial penalty plus a fine or confiscation of illegal profits). Having said that, we encourage companies to prepare and adopt policies and procedures to manage promptly the consequences that may arise from investigations, for example, by preparing an action plan and adequately training employees. Internal investigations can also be an effective tool. We expect an intensification of this trend, also following the very recent whistleblowing legislation (Law No. 24/2023) that will boost the investigation of whistleblowers’ reports. What are your recommendations to effectively handle a crisis arising out of a white-collar crime? Where does a successful defence should start? Firstly, it is crucial to identify the issue and draw up an informed action plan early on. Issues overlooked in the early A criminal lawyer, even better if supported by an experienced communications consultant, may play a key role in providing the right answers to a white-collar investigation from its very beginning.
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