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Companies Must Be Vigilant When Handling Internal Investigations and Subpoenas
As companies navigate the complex world of internal investigations and legal compliance, they must be aware of their obligations to inform authorities, review information carefully, and develop defense strategies. A recent report highlights the importance of transparency in these matters.
Transparency in Internal Investigations
In Peru, companies are not obligated to publicly disclose the existence of an internal investigation unless there is a high probability that the prosecutor or another authority becomes aware of the facts under investigation. However, companies must consider factors such as:
- The degree of probability
- Potential benefits from collaboration with authorities
- When deciding whether to disclose information
Attorney-Client Privilege in Peru
In Peru, attorney-client privilege can be claimed over findings of an internal investigation if an external attorney directly participates in the inquiry. Companies are advised to:
- Identify participating external attorneys
- Document their involvement to protect the privilege
The Code of Ethics of the Peruvian Bar Association treats corporations and natural persons equally with regard to attorney-client privilege. However, it is recommended that companies inform parties at each stage of the investigation that the external attorney represents only the company’s interests, ensuring that the privilege remains between the attorney and the company, not the employee being interviewed.
Key Principles
In Peru, the holder of attorney-client privilege is the client, with no distinction made between corporations and natural persons. To avoid questions about the lawfulness of gathered information or the scope of the attorney-client privilege, companies are advised to:
- Inform parties at each stage of the investigation that the external attorney represents only the company’s interests
Foreign Counsel
While there is no specific regulation in Peru regarding attorney-client privilege for foreign counsel, a sector of Peruvian specialists consider it applies when external attorneys are involved. However, other specialists argue that the privilege extends to advice sought from foreign lawyers in relation to investigations carried out in Peru.
Waiver of Privilege
In Peru, waiver of attorney-client privilege is regarded as a cooperative step in an investigation. Companies may waive their privilege to obtain benefits, such as exemptions from liability. While there are no contexts where privilege waiver is mandatory or required, companies must carefully consider the implications of waiving their privilege.
Conclusion
As companies navigate complex legal matters, it is essential they remain vigilant and transparent about internal investigations and subpoenas. By understanding their obligations and the nuances of attorney-client privilege in Peru, companies can mitigate risks and protect their interests.