One way whistleblowers commonly communicate compliance issues to companies is through external lawyers who act as ombudsmen. The lawyer receives information from the informant, filters it and then forwards it anonymously to the company. This ombudsman model is frequently used because it was thought to protect the whistleblower’s anonymity under the assumption that the prosecuting authorities could not seize any of the whistleblower's documents from the lawyer.
As the Bochum Regional Court recently decided, this assumption is not always true and investigative authorities may, under certain conditions, search the premises of external ombudsmen.
Ombudswoman's premises searched
In the case decided by the Bochum Regional Court, the ombudswoman received an anonymous report from a whistleblower who was raising serious accusations of a breach of trust against the managing director of a company. The district attorney issued a warrant to search the ombudswoman’s premises to gain access to the anonymous report. To avoid having her premises searched, the lawyer handed over the anonymous report and at the same time filed a complaint against the search warrant. Her complaint asserted that the anonymous report concerned documents that are protected by the client-lawyer relationship.
Confiscation of anonymous reports permitted
Essentially, the Regional Court decided that the confiscation provision in section 97 subsection 1 no. 3 of the German Code of Criminal Procedure does not protect compliance ombudsmen with regard to obtaining information from anonymous whistleblowers as there is no client-like relationship of trust between the ombudsman and the whistleblower which is worthy of protection. Lawyers may refuse to give evidence regarding what has been entrusted to them or what they have gained knowledge of through a client-lawyer relationship. In this particular case, the ombudswoman, as is generally the case in practice, was instructed by the company and there was no client-lawyer relationship between the whistleblower and the ombudswoman.
High threshold for client-lawyer relationships
As a result of this decision, client-lawyer relationships appear more difficult to establish. The whistleblower was neither accused in criminal proceedings nor at risk of criminal law charges and therefore not in need of availing himself of the services of a lawyer to defend against criminal prosecution. Even the lawyer’s guarantee of confidential treatment with regard to the information she had received in her position as ombudswoman was insufficient to establish a client-like relationship of trust. According to the court, this would result in a danger that the statutory provisions on the permissibility of criminal procedural measures would be circumvented by making private-law "promises".
According to the Bochum Regional Court decision, the company and the lawyer instructed to act as an ombudsman can no longer fully guarantee anonymity. Protecting the whistleblower's anonymity could, in theory, be guaranteed by a client-like relationship of trust between the ombudsman and the whistleblower. In practice, this is ruled out as the ombudsman is instructed by the company and acts in its interests. This decision means there is a fear that potential whistleblowers will not report their compliance concerns. The importance of ombudsman and whistleblower systems which have hitherto been important to effective, functioning compliance systems, may thus decline.