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Brief understandings: Provision nº 188/2018 from the Brazilian Bar Association

Corporate investigations have been oftenly used in cases of internal fraud, corruption, competition issues, among others, in order to guide the adoption of necessary measures and the potential communication to public authorities.

This practice, usual in the criminal area for a few years, gained strength recently, mainly as a result of the “Operação Lava-Jato” (Federal Police Operation Car-Wash). The Brazilian Bar Association, aiming at regulating the institute of corporate investigations (or, as it is called, defensive investigation), recently approved the Internal Provision n. 188/2018, ruling the exercise of lawyer’s professional prerogative to carry out such task.

• It defines the practice of corporate investigation as the “complex of investigative activities developed by the lawyer, with or without the assistance of a technical consultant or other legally qualified professionals, at any stage of the criminal prosecution, procedure or degree of jurisdiction, aiming at obtaining elements of evidence destined to the constitution of licit proof collection, for the protection of rights of its constituent”.
• It establishes that “defensive investigation may be carried out during the preliminary investigation stage, during the judicial process, at any stage, including when serving penalty time the criminal execution, and as a preparatory measure for the review of the criminal procedure”.
• It determines that the lawyer has the duty to preserve the confidentiality of the information collected. It also provides that lawyers/other professionals who assist the investigation do not have the obligation to report the facts under investigation to public authorities.
• It indicates that corporate investigation is an exclusive lawyer’s activity.

Should you have any questions, please do not hesitate to contact: André Fonseca (andrefonseca@felsberg.com.br) head partner of the white-collar crime, corporate investigations and compliance department.

WHITE-COLLAR CRIME, CORPORATE INVESTIGATIONS AND COMPLIANCE DEPARTMENT.

FELSBERG ADVOGADOS

This article is of a solely informative nature, and does not contain any opinion, recommendation or legal advice from Felsberg Advogados concerning the subject matter covered.