Let me start by saying that the term ‘Fraud Lawyer’ does NOT mean a Lawyer who commits fraud…
A. Fraud Defence Lawyer:
When we speak of a Fraud Lawyer, it is usually in the context of a Lawyer who defends against Criminal Prosecutions, as a Defence Lawyer, which we do at Darlingtons.
Let me start by saying that we do not do Legal Aid. We do not hold a Legal/Public Funding Franchise. Also, we are forbidden from offering to carry out such work on a ‘No Win, No Fee’ basis. We are also not able to obtain After The Event Insurance for Criminal cases.
It would mean that we do the following:
1. Discuss with you, whether or not to plead guilty or not guilty. [This does not mean that we would coach you in a response, or how to behave at Interview, or in Court]
2. We would accompany you to the Police Station where you would usually undergo either voluntarily or involuntarily, a [PACE] Police and Criminal Evidence Act Interview. We would advise you as to whether or not to make a ‘no comment’ interview.
3. We would consider with you what evidence you have, or the Crown Prosecution Service, Trading Standards, or Serious Fraud Office has adduced, and re-assess your position.
4. If appropriate, and we thought that the evidence against you was weak, we would write a letter of representation.
5. We would represent you at first appearance and help you decide, (if the charge allows), whether you should opt to stay in a Magistrates’ Court, or have your case considered by Trial and Jury in a Crown Court. We would file a Case Management Form confirming the basis of your Defence and what witnesses needed to be called, and what expert evidence needed to be adduced.
6. We would draft and serve a Defence Statement on your behalf, or else we would instruct specialist Counsel to do the same.
7. We would then re-assess and re-consider any unused material served by the Prosecuting Authority, and provide you where appropriate with a strategy.
8. There might be other interim applications during the case for further evidence, or for evidence to be given by video link, etc…which we will deal with, subject to your instructions.
9. We will represent you at Trial, or else we will instruct specialist Counsel on your behalf.
B. Fraud detection and prevention Lawyer:
Another aspect of our job, specifically at Darlingtons, is to provide you as a Corporation, or a small business, or indeed as an individual with a review of elements of your own security, from a legal perspective.
A good deal of fraud is carried out internally. There are many reasons for committing fraud, which are not always obvious to you, but may well be obvious to us.
2 Latin maxims, spring to mind:
I. Cucullus non facit monachum, The cowl does not make the monk.
II. Quid custodiet Ipsos custodes, Who watches the guardsmen?
I. Carrying out a full assessment on all employees, including going through their previous CVs, CRB checks, Credit-reference checks;
Ii. Considering lifestyle reports;
Iii. Reports on morale.
(I) is obvious, but (ii and iii) may not be so obvious. The reason for the latter is to provide you with a report as to whom within your organisation is at risk of committing fraud or other offences, and whom would need to do so to support their lifestyles, or drugs issues, or a basic need for money. Whom would be able to rationalise such a fraud, etc…
IV. Audit reports, to check that the books have not been cooked. This would normally be carried out by an Accountant not associated with you so as to be truly independent.
V. Analysis of internal and external emails of employees. [This is perfectly legal, if set up in the appropriate manner]
I. Consideration of current policies including privacy, emails, searching, monitoring of phonecalls, CCTV monitoring, etc…
Ii. Consideration of current Policy in respect of the Bribery Act
Iii. Writing or re-writing such policies on your behalf.
IV. Setting up rules and regulations for monitoring internally and externally;
V. Reviewing data security, and Pen-Testing (Penetration Testing), usually carried out by a 3rd party with your consent on our behalf.
David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, a Certified Fraud Examiner, a member of the Association of Certified Fraud Examiners, the Fraud Advisory Panel, and a visiting associate Professor of Law at Brunel University.
If you have a fraud issue, more advice can be found here on our site.
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