Unrestrained – Federal Constitutional Court considers searches of law firms constitutional

While until recently searches in law firms used to be taboo, the barriers for criminal proceedings against lawyers continue to be lowered in 2019. Since the “Dieselgate” scandal, the Federal Constitutional Court has held that searches of law firms are constitutional.

As part of its investigations into the car emissions fraud scandal, Munich II Public Prosecutor’s Office searched the offices of international law firm Jones Day and seized documents and electronic data. In September 2015, Volkswagen AG had hired Jones Day to conduct an internal investigation and to provide legal advice, in particular relating to the U.S. prosecution authorities.
The firm’s complaint has already been dismissed for lack of competence to file a complaint. As a U.S. law firm, it was not a domestic legal entity within the meaning of Article 19(3) of the Constitution, since it was not headquartered in Germany or another EU Member State. The law firm’s Munich office was merely a legally dependent branch.

The fundamental rights of the three lawyers filing the complaint had not been infringed, either. In connection with business premises, Article 13 (1) of the Constitution only protects the entrepreneur, not the individual employee. Although a partner of a law firm is a co-owner, the partners are only entitled to joint right of use, so that one person alone could not assert it. Individual employees would only be entitled to file a complaint if a substantiated submission were made that the business premises also served as an individual retreat area. This was not applicable in the case at issue. The Federal Constitutional Court was also unable to identify an infringement of Articles 12 or 2 of the Constitution or of the fair trial principle.

With respect to Volkswagen AG’s complaint, the Federal Constitutional Court considered the seizure of internal investigation documents interference with the right to informational self-determination, but held such interference to be justified. The prohibition to carry out investigations against lawyers (Section 160a German Penal Code) was not applicable to searches and seizures. With regard to seizures, Section 97 Penal Code is a special provision that does not protect any client-lawyer relationship, but only the relationship between lawyer and defendant. Volkswagen was not a defendant in the case, however. Since seizures are not prohibited, searches aimed at such seizures would not be prohibited, either. Otherwise the seizure right would be reduced to absurdity.

The views held by Munich I Regional Court and the Federal Constitutional Court are open to challenges. By no means should protective steps against investigative measures therefore be dropped. In individual cases, such as when association fines are impending, the search prohibition relating to lawyers may apply. In internal investigations, it is important for companies to take the Federal Constitutional Court jurisdiction into account and to draw the right conclusions.

Your contacts are the experts from the White Collar & Criminal Compliance. Dr. André-M. Szesny, LL.M. and his team specialize in compliance, corporate criminal law, and internal corporate investigations.