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SFO Guidance: New requirement for lawyers to ‘certify privilege.’


The Serious Fraud Office’s (SFO) Corporate Co-operation Guidance has arrived in the form of a five-page document.

In it, the SFO defines co-operation as “providing assistance to the SFO that goes above and beyond what the law requires” and details eleven general practices that companies should consider when preserving material and giving it to the SFO.

There is specific guidance given relating to digital evidence and devices, hard copies and physical evidence, financial records and analysis of them, industry information and individuals.

There is the SFO’s assertion that, during an investigation, if an organization claims privilege it will be expected to provide certification by independent counsel that the material in question is privileged.

While the guidance will be of use to companies — and is arguably less demanding than many would have feared — it does make the point that compliance with the compulsory process does not, in itself, indicate co-operation. It even goes as far as to say that even “full, robust cooperation’’ will not guarantee any particular outcome.

So while it may well be the case that the guidance will help some who come under investigation from the SFO, reading it gives at least as much cause for concern as concrete advice.

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