By Bill Doogue, Director at Doogue + George criminal defence lawyers

Being unprepared for an unexpected search by the AFP, state police, or regulatory bodies like ASIC or the NACC can have devastating consequences, both legally and reputationally.

The NACC, an independent agency, was set up to prevent, detect, investigate, and report on serious or systemic corruption in the Commonwealth public sector. There are a number of other Regulators that deal with alleged issues in the corporate sector.

Its formation, alongside a legislative shift favouring stronger enforcement, signals an era of heightened scrutiny for businesses. In this environment, having a robust protocol in place to manage regulatory or police searches is no longer an optional extra but an essential safeguard.

Why every business needs a plan

Clients may resist the idea of preparing for a potential search, fearing it implies they have something to hide. However, establishing a plan is no different from maintaining a crisis communication strategy for handling adverse publicity. It’s about being proactive rather than reacting after the fact and realising you could have helped your client better.

We have been instructed by large International Companies to provide outlines of how issues relating to regulators and the Police are dealt with in Australia. They are not indicating any sort of wrongdoing but are sufficiently organised to have processes in place for all contingencies.

Having represented numerous clients during corporate searches and investigations, I’ve observed that commercial lawyers often hesitate to engage with raids. This reluctance stems from concerns about conflicts of interest and a lack of experience managing these high-stakes situations. However, failing to act decisively can expose clients to unnecessary risks.

For example, allowing a search to proceed unchecked or failing to assert legal privilege can give prosecutors an unfair advantage if the matter escalates to court. Worse, corporate lawyers risk becoming witnesses to the raid, a situation that compromises their impartiality and professional relationship with the client.

Collaborating with criminal lawyers

To best serve your clients, it’s vital to understand the role of criminal lawyers in these scenarios.

Investigations are the domain of criminal law firms, which specialise in managing raids and protecting clients’ rights during the process. Establishing a collaborative relationship with a criminal law firm before an incident occurs ensures your client is prepared for any eventuality.

Criminal lawyers are typically involved only for the duration of an investigation or raid, but if charges are brought, they manage the subsequent criminal case. This division of responsibilities allows corporate lawyers to focus on maintaining the client relationship and addressing commercial considerations.

Proactive steps for corporate lawyers

• Identify a criminal law partner. Begin by identifying a criminal law firm experienced in managing investigations. Establishing this relationship in advance ensures a swift response should an unexpected search occur.

• Designate key client contacts. Work with your client to determine which staff members—typically the CEO, COO, and CFO—should contact you immediately if police or regulators arrive. Ensure these individuals have your contact details and understand the importance of acting quickly.

• Prepare for potential raids. If there’s suspicion of a pending investigation, notify your criminal law partner immediately. They can advise on the number of lawyers needed to attend and other preparatory measures

Responding to an unannounced raid

When police or regulators arrive without warning, the first priority for you, the corporate lawyer, is to delay their access until legal representation is present.

Here’s how to manage the situation effectively:

• Pause the search. Instruct your client to inform the police or regulators that there is privileged material and you want lawyers present during the search. This step is critical for protecting privileged information and preventing employees from inadvertently providing damaging statements. I have never come across a situation where there is not privileged material of one sort or another in a setting such as we are envisaging.

• Collect key information. While awaiting legal support, obtain a copy of the search warrant and record the contact details of all officers or regulators involved. This documentation is essential for maintaining a clear record of the search.

• Notify your criminal law partner. Contact your designated criminal law firm immediately. Their arrival will ensure the search is conducted within the bounds of the law and that your client’s rights are fully protected.

The role of criminal lawyers during a raid

Once on-site, criminal lawyers take the lead in managing the situation.

Typically, they will assert legal privilege and take responsibility for notifying the police or regulators of any documents or communications protected by legal professional privilege (LPP). If privileged materials are at risk of being seized, they may request time to "claim privilege" over these documents, ensuring they remain confidential.

Criminal lawyers will also ensure employees are protected and fully understand their rights to remain on the premises or leave during a search. However, in most circumstances, it is advisable that staff leave to avoid being drawn into conversations or inadvertently aiding the investigation. The lawyers who attend can answer staff questions about their rights and responsibilities.

For examples it is often good for clients to know that if their phone is seized they can keep the number and replace it immediately so that they do not lose contact with people.

Criminal lawyers also play a key role in documenting the search and ensure all interactions with police or regulators are followed up via email to create a clear evidentiary trail. This includes confirming the identification of privileged documents and outlining any agreements regarding their handling.

If the Investigators are not willing to stop the search before the lawyers arrive that would be confirmed by email to the lead investigator immediately to keep them accountable for their decisions.

Building a culture of preparedness

It is now more important than ever that corporate lawyers or in-house counsel strongly encourage their clients to view ‘investigation’ preparedness as a key aspect of corporate governance.

Just as businesses implement policies for data security or workplace safety, having a protocol for managing police or regulatory investigations demonstrates a commitment to due process and accountability.

The evolving enforcement landscape demands a proactive approach from corporate lawyers.

By collaborating with criminal law firms and educating clients on the importance of preparedness, you can safeguard their interests and maintain your professional relationship during challenging times.

Remember, preparation is not an admission of guilt—it’s a prudent strategy for protecting your client’s rights and reputation. When the police or regulators come knocking, being ready can make all the difference.

To find out more, visit https://www.criminal-lawyers.com.au/