Home | Risks of Obstruction of Justice for Attorneys in Internal Investigations?

Risks of Obstruction of Justice for Attorneys in Internal Investigations?

My colleague Wolfgang Prinzenberg and I have tackled this contentious issue in the new edition of Wistra (Pragal/Prinzenberg, Strafvereitelungsrisiken bei Internal Investigations, Wistra 2023, p. 275-277).

Special thanks to Prof. Dr. Wolfgang Spoerr for his valuable peer review.

The article deals with the issue – seldom discussed yet highly relevant in practice – of the possible circumstances under which attorney commissioned to conduct an internal investigation and those responsible for the client may run the risk of rendering themselves liable to prosecution for obstruction of justice.

It examines the neuralgic case constellations in practice and seeks to clarify the dogmatic principles in order to offer guidance for practitioners on this basis.

Among others, we discuss the following case groupings (N.B.: always assuming an intention to thwart criminal proceedings):

  • Improper restriction of the investigational mandate and report in terms of personnel, subject matter or period under examination.
  • Improper restriction of the data to be collected (such as under the pretext of data protection requirements): e.g. incomplete matching of data categories, no matching of emails with databases/group drives and physical documents, no consideration of special file types (transactional data, programming data, accounting data),
  • Questioning of employees (so-called “custodians”) without coordination with the public prosecutor’s office (alteration: in the knowledge that this “advance warning” will, for instance, be used to manipulate subsequent witness testimony or destroy incriminating evidence),
  • Bypassing or influencing relevant “custodians” during questioning, conducting deliberately unproductive interviews (e.g. “freehand” rather than based on existing or available data analysis, waiving the presentation of allegations), or embellishing the written record of a statement,
  • Destruction of incriminating evidence (e.g. email inboxes or data storage)
  • The storage of the entire database compiled within the context of so-called eDiscovery on servers abroad in order to render them inaccessible to the state
  • Supplying evidence (particularly data) in a deliberately disorganized manner or in improper “inflated” quantities for the purpose of obstructing justice or in breach of a so-called “data supply agreement”,
  • Delaying the investigation for the purpose of “protraction” or causing the statute of limitations to expire
  • Failing to draw up or submit an incriminating report
  • Submitting a report of the investigation to the prosecutor’s office that is unjustifiably “euphemistic” or “abridged” with regard to the presentation and assessment of the available facts.