Legal Aspects of Fraud
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1 Legal Aspects of Fraud June 2007 Alexander L. De Zordo Partner, Borden Ladner Gervais Fraud Law Group
2 THE LAWYER S ROLE Prevention - Code of Ethics - Policy on fraud and other illicit activities. Detection / Investigation - Search and seizure activities at work. - Meeting with witnesses and/or the suspect. - Risk managmenet dismissals. - Collaboration and joint effort with police investigators and forensic accountants. Legal Proceedings - Civil recourses - Criminal recourses
3 THE LAWYER S ROLE Why is a lawyer required in the context of an internal fraud investigation?
4 THE LAWYER S ROLE To put the fire out: Specific knowledge and expertise in matters of fraud when and how to stop the bleeding. Fraud management and risk minimization dismissals. Urgent interventions recognized expertise in extraordinary legal remedies.
5 THE LAWYER S ROLE The advantages of working with a lawyer specialized in matters of fraud: Immediate results Risk management / minimization of damages. Recovery of stolen funds and or property. Criminal record.
6 Occupational Fraud: Prevention
7 Create an environment suitable for preventing fraud Effective and operational internal controls. Background checks and screening of newly hired employees. Detection surveys and other targeted fraud detection procedures. Workplace monitoring Code of Ethics Ethics must be a founding pillar of the company culture. Policy on fraud and other illicit activities
8 Occupational Fraud: Legal Recourses
9 Certain legal proceedings Anton Piller injunction : Sound evidence Grave and serious potential or actual damages Possession of conclusive evidence risk of destruction Injunction Appearance of right Irreparable harm / Balance of inconvenience Urgency
10 Certain legal proceedings Seizure before judgment Property which the plaintiff has the right to revendicate-734 Cpc. Objective reason to fear that without this remedy the recovery of claim may be in jeopardy 733 Cpc - Supplement: the fear of peril criteria in Seizure Before Judgment versus the fear of disappearance or destruction criteria in an Anton Piller Injunction Mareva Injunction Common Law recourse
11 Certain legal proceedings Bankruptcy Petition Acts of bankruptcy Powers of a trustee in bankruptcy Interim Receiver Urgency
12 Certain legal proceedings Motion to name a judicial receiver (or a judicial sequestrator) By virtue of the Civil Code of Quebec An act of bankruptcy is not required Action for damages Fault, damages, causal link
13 Other Civil Recourses Motion for forced surrender and taking of possession to administer Motion to preserve evidence Discovery Oppression remedy of the CBCA Motion provided for in the Act respecting the legal publicity of entreprises Hybrid orders / Norwich / Combination of orders
14 Other Criminal Recourses Criminal recourses - Complaint Criminal record The Crown pursues and prosecutes Criminal recourses Access to information (Section 490 (15) Cr. Code) Parallel criminal and civil proceedings
15 Employee: Search and Seizure Respect of privacy principle Search of a desk, lockers, computer Seizure Assistance from police authorities
16 Question Period Alexander L. De Zordo Partner, Borden Ladner Gervais Fraud Law Group
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