“Prosecutors Are Driven By Fear”

Jürgen Wessing (right) and Heiko Ahlbrecht

The two lawyers are among the most experienced white collar crime lawyers.

(Photo: Frank Beer for Handelsblatt)

Dusseldorf The law firm Wessing & Partner on Düsseldorf’s Rathausufer is one of the top addresses in white collar crime. The corridors are angled, a rustically furnished, narrow library serves as a meeting room – it is not the typical offices in which lawyers from commercial law firms often reside. The specialists are not worried that the lawyers of the major competitors are increasingly advising on criminal law and compliance issues.

The corona crisis has changed life dramatically. What are the consequences for you as a criminal lawyer?
Wessing: We have fewer new clients. This is mainly due to the lower activity of the public prosecutor’s office – there were hardly any searches. We expect a new wave from autumn.

Are you faced with cases due to the crisis?
Wessing: It is too early for that. It is usually half a year or more between the act, its discovery and our involvement. I think it is likely that cybercrime cases and data breaches will increase. We’ll also see more bankruptcies. And those cases will make us work in which financial aid from the state has been misused and funds have been deliberately diverted.

Ahlbrecht: It becomes critical when large companies have taken up a large amount of short-time allowance, but the conditions have not been met. Granting loans under subsidy law can also be deemed fraudulent. Since we are already in contact with corona-related procedures in medical criminal law, we also expect more work there.
Apart from Corona, the termination of the lawsuit because of market manipulation against the VW leaders Diess and Pötsch made headlines – against conditions of 4.5 million euros each.

Can managers buy themselves too easily?
Wessing: The case is more an example of procedures that cannot be carried out. I’ve seen quite a few. Let’s take the Loveparade process with 50,000 pages of file files and 6.3 gigabytes of data. If you want to go through such a mammoth program, our system is not suitable. The prosecution is driven by the fear of missing something and keeps putting too much on the plate. Then none of this can be eaten at all.

Why is that?
Ahlbrecht: From a criminal procedural perspective, this has to do with the main trial. The basis of a judgment is only what is said, shown and officially introduced at the trial. Everything that the prosecutor presented with the indictment has to be worked out in detail.

In the VW trial, the circle of accused was manageable. In your opinion, was the procedure still not feasible?
Wessing: The prosecutors have obviously seen that they would have had to do too much to get a conviction at all. And that would have turned out to be probation, if at all. So rather millions for the state treasury than a public shrug for a suspended sentence or the slap in the face of an acquittal.

Ahlbrecht: It is a classic iceberg procedure: the allegation is the misinformation of the investors, but indirectly one would have had to deal with the entire diesel scandal.

VW pays the money requirement for Diess and Pötsch. How do you rate that?
Wessing: That is the real perversion of the situation. The circulation of 4.5 million euros is personal and not company-related. Section 153a of the Code of Criminal Procedure is there to ensure that the public interest in law enforcement is eliminated if the specific person provides a service. If a suspect does not raise the sum himself, the opportunity idea is ineffective.

So is it wrong for VW to make the payment?
Wessing: It is wrong, but legally correct: the system invites you to do so. Because the system can no longer cope with the procedures.

What do you mean?
Wessing: When I started, defense lawyers weren’t spoken to prosecutors. Only in the main trial. It was kind of secret science to talk to prosecutors. This was followed by a decade until the mid-1990s in which the prosecutors were overwhelmed with the number of proceedings and in which they were very grateful when the defense lawyer opened the way to dialogue. The situation then tipped over, and investigators expected dialogue.

And then?
Ahlbrecht: The prosecutors went into the proceedings with the expectation that this or that sanction must come out in dialogue. It was far more difficult to get the process to an end. When I started 20 years ago, there were many environmental offenses that were very complex. There was an opportunity to discuss appropriate procedural attitudes using this rule. In the meantime the wind has changed again. Attitudes against monetary restrictions still exist, but they should not be accepted as safe.

The hiring against circulation was created for minor offenses. Are cases like that at VW still within the meaning of the regulation?
Wessing: The regulation was amended a few years ago. In the meantime, it is explicitly stated in the justification of the law that it should extend into the middle of crime, that is, offenses, where the question is: prison or not? It is important to understand that Section 153a is not an exclusive blessing. It can also be a big curse.

With what reason?
Wessing: Clients shy away from the main negotiation like the devil the holy water – even if they are sure that they have not done anything wrong. Even if the lawyer is convinced that the client has a very good chance of acquittal and wants to take the case to court, the client sometimes says: I want to get out of here because the fact that a main hearing is taking place , can lead to civil death.

Ahlbrecht: Active corporate managers, in particular, can no longer afford a main negotiation, as can consultants. Then you are burned. It used to be different.

And what drives the group?
Wessing: Basically, companies have a strong interest in hiring, even if the accused manager is more of the opinion: I am innocent and go through the procedure. – Because a process creates a negative press. If it continues, the company will also lose control that it maintains with the hiring against a condition.

Ahlbrecht: The importance of control is enormous. We work like control freaks according to the motto: control, control, control. It is our job to keep the company in control of the process.

This means?
Ahlbrecht: We try to keep the process unobtrusive, and we work on briefs if we can do anything. It is important to avoid interrogations. You lose control a bit.

A personal questioning of the accused is the first defeat?
Wessing: The first real defeat is the admission of the indictment. It is the top priority: just not in court.

With the indictment, the way is usually mapped out.
Ahlbrecht: Yes, statistically only one percent of the cases do not allow the indictment. Our results are better. We manage up to 15 percent of the cases that the charges brought are not admitted. If the dialogue with the public prosecutor’s office has previously failed, another actor comes into play with the court from the interim proceedings. We use that to give another lecture.

Mr. Wessing, your father was also a lawyer. When did you decide to become a defense lawyer in economic proceedings?
Wessing: My father found criminal law terrible. I actually only joined his law firm because Sven Thomas worked there. He was the best defense lawyer far and wide and I could learn from him. At the beginning of my career, I was not focused on economic processes.

What were your first cases?
Wessing: In the mid-1980s, I defended a young woman who killed her far older lover with a crossbow. Or a man who killed his wife with 147 stings. In such cases, you learn how important it is to work through the facts thoroughly.

Jürgen Wessing (2nd from right) and Heiko Ahlbrecht (right) with the Handelsblatt editors

The lawyers are among the most sought-after German criminal defense lawyers.

(Photo: Frank Beer for Handelsblatt)

And then?
Wessing: My father tried to take me to cases that had a civilian impact. As a result, I was active in a wider field. And I realized that my future lies in white collar crime.

What happened next?
Wessing: My formative, first major white collar crime case was the so-called heart valve procedure. I represented a large American medical company and almost lost my mandate right from the start.

What was the reason?
Wessing: I had billed too little. The manager took me aside and explained that the Americans are used to getting high bills at the beginning of the process. From this they deduce the activity and effectiveness of their defenders. This is how I learned that proceedings with US clients can be viewed differently in many areas than German ones.

What’s the difference?
Ahlbrecht: In defense, Americans want to have covered all scenarios from the start. They are used to that from their law firms. In the United States, major law firms are heavily involved in criminal law and endeavor to bring many people to the case.

Today, white collar crime lawyers earn very well. How did the change come about?
Wessing: When I started, three quarters of the cases were surpassing the statutory fees. You were happy if you could even pay for hourly fees. The hourly fees of criminal lawyers were among the lowest among business lawyers. Today it is said that they are only topped by those of the anti-trust lawyers.

Mr. Ahlbrecht, how did you get the first major cases?
Ahlbrecht: We went and always go to the mandates in pairs. After a while it happened more and more that a CEO called me directly because he realized that he can do something and is easier to reach. It was like a knighthood.

Today Wessing & Partner is one of the larger criminal law firms. How many lawyers do you need to make your business successful?
Ahlbrecht: Ten is the lowest limit, rather twelve. There are mandates, so we need a whole range of lawyers at once.

Which are they?
Ahlbrecht: In the event of a large search, the office here is already empty. When a company was searched once for three days, we were there continuously with eight people and tried to stay in control: where are the investigators, what are they doing, where do we have to intervene because an illegal questioning threatens again? A lot of staff is also required for internal investigations. In addition to the lawyers, we also have an IT expert on board and use e-discovery programs.

Major law firms are also committed to internal investigations and compliance. You’re hopelessly at a disadvantage compared to them, aren’t you?
Wessing: Personnel absolutely. The major law firms can also park 20 people. Usually only three of them really know. We can also do this with our lawyers, who all have a clue.

Compliance is a huge business area. Despite many efforts, corporate violations have hardly decreased. What does the new Association Sanctions Act do?
Wessing: It is a compliance promotion law. Even if the term does not appear, the law demands compliance with power.
Ahlbrecht: For the assessment of whether a company is to be fined, it is important, on the one hand, whether compliance structures existed at the time of the allegation. And secondly, how the company deals with it afterwards.

You are one of the few criminal lawyers who advocated explicit corporate criminal law early on.
Wessing: It’s a little weird. At that time I said that I would prefer a clearly defined law than the actual wild growth. The public prosecutor’s offices in some cities acted very differently.

How do you see the bill?
Wessing: The bottom line is that the legislature wants to reward efforts for compliance. My problems with the bill are elsewhere. Investigation activity is outsourced to major law firms as a new business model, defense is effectively prevented.

You have to explain that.
Wessing: There is paragraph 41, according to which the law enforcement agency may refrain from persecution in the event that a company has reported an internal investigation until it is completed. That means: a lawyer does everything. The prosecutor is out.

It just means that the authority can refrain from doing so. You don’t have to let the booklet of action take your hand.
Ahlbrecht: That’s right. The prosecutors remain masters of the proceedings. But it will be exciting to see how they react to it. If a public prosecutor knows of an internal investigation, it is now part of coordinating it with the authority. Investigators sometimes want to secure the first access to the survey of some employees.

Wessing: It is infinitely more convenient for the prosecutor to let someone else do the work if someone works in his sense. Who knows that the deal mischief in criminal law has arisen from the overload of the authorities, can see how they will react to such a comfortable discharge option.

Isn’t your criticism of the law also the fear of more competition from major law firms?
Wessing: No. Although it actually creates a new business model for these law firms, that’s not the reason. This is due to the fact that the law is formulated to be highly defense-unfriendly. Defense is almost no longer possible.

What makes you think?
Ahlbrecht: The sanctions can only be mitigated if the company or the third party charged with investigating the allegations works “continuously and without restriction” with the authorities. And – particularly noteworthy – if after the examination their results, including all documents, are made available to them. This has far-reaching consequences.

Which one?
Ahlbrecht: Companies against which allegations arise are forced to make a fundamental decision right from the start: cooperation and de facto submission – or defense. The company can forget all possible procedural protection regulations. Documents must be released voluntarily if the punishment is to be mitigated. But maybe the prosecution is wrong with their allegations.
So the law is no good?
Wessing: The weaknesses of the law clearly outweigh its strengths.

Does it deprive the defense lawyers of the basis of their work?
Wessing: That does it in large parts, at least when it comes to corporate defense. Which board of directors still dares to go to its supervisory board and say: “We’ll do it and defend the matter”, if at the same time it is clear that the fine will only be half as high if the company immediately drops its pants? And at a time when you don’t even know if there have been any violations and the extent of them. The advice of the supervisory board will be: If you do not want to be liable, then get the public prosecutor or an assistant to investigate.

What does that mean in practice?
Ahlbrecht: The bill promotes Americanization of the process. In the United States, lawyers are not that close to the company represented. They are formally commissioned and paid for by the latter. But in practice there is at least as close a relationship with the investigative authority.

Wessing: There is a nice saying: “What bread I eat, the song I sing.” The attorneys working for the public prosecutor will be closer to the authority in terms of their basic attitude. The law firm is regularly involved in proceedings, the company – hopefully – only once. If you want to continue receiving orders, you must be highly compatible with the public prosecutor’s office.

But the public prosecutor doesn’t choose the law firm.
Ahlbrecht: When the public prosecutor tells you: “Think about choosing law firm Y or Z instead of law firm X” – what is going on in you?

Wessing: I have already seen a prosecutor say to a manager: “I won’t do that with him.” But the most important thing is the basic attitude. The lawyers who also work for the public prosecutor have to acquire their mentality and look harder. I cannot be a hunter and a protector at the same time.

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Are there any other points of criticism?
Wessing: There is another special treat when it comes to what should play a role in determining the sentence. An individual debt element is provided there. The level of penance is determined by the failure of the individual and not that of the company. This is a system break.

Ahlbrecht: The draft stipulates that penance will only be mitigated if all the mitigation requirements are met. And that the mitigation of penance does not apply if defense and investigation are in one hand. If this were deleted, much would be gained. That seems utopian. The bill continues to do so, although much has been discussed.

Rupert Stadler, Wolfgang Hatz, Ulf Johannemann are accused of being remanded in custody in economic proceedings. Do investigators use detention as a strategic tool?
Wessing: Pre-trial detention is not a legitimate means of extracting confessions. It is only used to ensure that a suspect does not evade the procedure or provides evidence. There has to be clear evidence of this. The risk of it happening must be over 50 percent. I have never experienced this in economic proceedings in my time.

Lawyers made “Cum-Ex” possible through expert reports, the ex-tax director of Freshfields is accused. What does that mean for the industry?
Ahlbrecht: In any case, it shows that you have to fully familiarize yourself with the facts you are reviewing. I can only issue an expert opinion with a clear conscience if I know the facts exactly. The lawyer must make it clear to the client that he assumes that he has the complete facts.

Wessing: If you are walking on a fine line, you have to name the client much more clearly. Cum-Ex makes it clear: As a lawyer, as a law firm, I always have to ask myself the question “Do I want this?”. You not only have to turn on your head, but also listen to your gut feeling.
Mr. Wessing, Mr. Ahlbrecht, thank you for the interview.

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