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04.07.2017 | KPMG Law Insights

Compliance Audit – Ombudspersons – (K)a protection by externals

Ombudspersons – (K)a protection by externals

Bochum Regional Court denies seizure protection for documents in the custody of an ombudsperson

I. Background

Concept of the ombudsperson

The use of so-called ombudspersons is now part of the standard portfolio of compliance management. In most cases, ombudsmen are external lawyers who are entrusted by the company with the task of receiving internal company information, subjecting it to an indicative legal examination and making the examination result available to the company.

Up to now, it has generally been assumed that external lawyers have a right to refuse to testify within the scope of their ombudsman position, which results in a prohibition of seizure of documents handed over to them or in their custody.

II. Decision of the LG Bochum

1. no prohibition of seizure

The Regional Court of Bochum has now ruled that, in the context of a search of the lawyer acting as ombudsperson, there was no prohibition of seizure with regard to an e-mail with indications of internal misconduct within the company.

2. seizure protection according to § 97 I No. 3 StPO

In principle, a lawyer has a right to refuse to testify pursuant to Section 53 I 1 No. 3 of the Code of Criminal Procedure. This leads to a prohibition of seizure in accordance with. § Section 97 I No. 3 of the Code of Criminal Procedure with regard to documents in the lawyer’s custody.

In particular, this protects information that becomes known to the lawyer in the course of his client relationship, as well as records made and documents received, from access by the state.

This prohibition of seizure has now been curtailed by the decision of the Bochum Regional Court in the case of ombudspersons.

It thus takes up an assessment of the Hamburg Regional Court from 2010 (608 Qs 18/10), which also denied a prohibition of seizure pursuant to Section 97 of the Code of Criminal Procedure for documents that were in the custody of a law firm in the case of internal investigations.

A later, much-noticed decision of the Mannheim Regional Court of July 3, 2012 (24 Qs 1, 2/12), which in particular clarified the relationship between Section 97 and Section 160a of the Code of Criminal Procedure and made it clear that a restrictive interpretation of Section 97 para. 1 No. 3 StPO, on the other hand, is disregarded by the Bochum Regional Court – wrongly in our view.

On the contrary, the court applies the provision of Section 97 I No. 3 of the Code of Criminal Procedure (again) only in a limited manner and therefore does not grant the attorneys acting as ombudspersons any protection against the seizure of documents received from whistleblowers.

This also removes the guarantee for the respective whistleblowers to remain anonymous.

3. no relationship of trust worthy of protection

The Regional Court therefore restricts the prohibition of seizure because, in its view, there is neither a direct client relationship nor a relationship of trust worthy of protection between the whistleblowers and the attorneys acting as ombudspersons.

A direct mandate relationship exists exclusively with the respective company commissioning the ombudsman.

A relationship of trust similar to a mandate, on the other hand, cannot exist according to the reasons for the decision because there is no special, individually established relationship of trust between the whistleblower and the ombudsperson.

If one were to see this differently, there would be, in the court’s view, the danger of a structural conflict affecting the lawyer’s professional duties.

4. no prohibition of seizure from other legal regulations

The Bochum Regional Court also rejects a prohibition of seizure on the basis of other legal provisions in question.

Thus, according to the court, such a prohibition cannot be justified either from Section 160a of the Code of Criminal Procedure or directly from the Constitution.

III. consequences

1. caution with previous indications and assurances

If companies explicitly assure the confidentiality of communications with ombudspersons in their compliance regulations or in their explanations of the whistleblowing system, or propagate the assurance of the anonymity of tips, caution is advised.

Here, references to the current legal situation as a result of the decision should be taken into account and, if necessary, the statements should be adjusted and restricted.

2. opposing views

The opinion of the Bochum Regional Court is likely to continue to be opposed by a broad body of literature that expressly contradicts a restrictive application of the protection against seizure under Section 97 of the Code of Criminal Procedure.

Even if a mandate relationship exists only between the commissioning company and the ombudsperson, there is likely to be a contract with protective effect for the benefit of third parties – i.e. the whistleblower – at least under civil law, who passes on his knowledge only on the basis of a special relationship of trust with the ombudsperson.

Against this background alone, a restriction of the protection against seizure seems questionable.

A restrictive interpretation also leads to a contradiction of values with the provision of Section 160a of the Code of Criminal Procedure – at least since its revision.

3. ombudspersons now dispensable?

In this respect, the question of the future use of external ombudspersons also arises.

First of all, the purpose of installing external ombudspersons is not only to ensure protection against seizure. Rather, external persons are also installed as ombudspersons in order to signal to the respective whistleblower that conflicts of interest can be ruled out in the assessment of the facts. In our opinion, it is precisely this circumstance that leads to a special relationship of trust. However, the Bochum Regional Court disregards this in its decision

In addition, external ombudspersons who work for several companies can draw on important experience in dealing with suspicious cases and also assess them more objectively than in-house ombudspersons.

In contrast to non-lawyer external ombudspersons, the other professional privileges continue to apply to lawyers with regard to the client relationship with the company.

Notwithstanding this decision, external attorney ombudspersons can therefore continue to be an important and useful component in a comprehensive whistleblowing system.

4. prospects

However, companies must be prepared for the current legal situation and be aware of the possibility of seizure. In this respect, the ruling gives the users of ombudsman systems homework to do.

Depending on the client’s wishes and the objectives of the whistleblowing system, various approaches should be examined.

For example, the use of technology could establish a mandate or mandate-like relationship, provided the whistleblower releases his or her identity. In this context, however, the respective ombudspersons would face particular problems with regard to identity verification.

The ruling of the Bochum Regional Court therefore does not fundamentally call into question the use of ombudspersons. These will continue to retain their importance in a whistleblowing system. However, companies and ombudspersons are faced with new challenges in designing the respective concept.

 

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