Bribery and corruption

At last, I have come to the attention of the US Department of Justice.

Though some of you may have suspected me for some time, I am going to have to disappoint you!  Someone in the DOJ has found my blog and last week spent more time reading more pages than anyone else on that particular day. Now, I do not know why the DOJ has become interested in a blog on the subject of e-discovery written by a former litigation partner at a large international law firm but the knowledge that he or she had looked at the blog led me to think about the Foreign Corrupt Practices Act (FCPA) and our own Bribery Act 2010.

We have been used to acting for lawyers and their clients for some time in relation to FCPA cases and clients in this country will have to get used to handling regulatory investigations and prosecutions which may arise in future under the new legislation which received the Royal Assent on 8th April as part of the wash up procedure at the end of the last Parliament.

As I am no longer a practising lawyer, but one who pays his annual due to the Law Society for the right to remain on the roll of solicitors, I can avoid writing a commentary on the Bribery Act, and anyway, others have done this for me. Those of you who are keen to know more may wish to look at the summaries of the Act provided by a number of law firms, among whom are Barlow Lyde & Gilbert, Field Fisher Waterhouse and Norton Rose. The summaries and notes are easily accessed by Googling the Bribery Act and scrolling down the first page of results!

What I will say, however, is that the terms of the Bribery Act appear to be much wider than those of the FCPA. This is clear from the list of offences created by the Act and by its international reach.

The Act provides for what is called an “adequate procedures” defence. This appears to involve demonstrating to the court that a company was sufficiently organised with its internal procedures to be able to show that it has taken its responsibilities seriously and has tried to cover all the angles to ensure bribery did not take place.

Lawyers will advise, but if the FCPA experience is anything to go by, lawyers should be talking to their clients about issues such as retention of and access to electronic material, litigation hold and the equivalent of the US concept of spoliation. Some of the recent cases in this country where we have heard of documents being left in the photocopier or where a party has refused to give timely and proper access to electronic documents will not be the cases in which lawyers will want to see their names appearing in the law reports in a few months or years!

And, I say this from an e-disclosure point of view as much as from the point of view of the offences under the Bribery Act!