Insight

The Company They Keep

Thomas Richter discusses the idea of corporate criminal liability.

An Interview With HammPartner
Best Lawyers

Best Lawyers

March 16, 2020 08:00 AM

This interview was conducted as part of the 2020 Edition of The Best Lawyers in Germany “Law Firm of the Year” award recognitions. Our partner Handelsblatt, also published these awards on June 27, 2019, online and in print in their June 2019 edition.

Germany has long been Europe’s economic powerhouse. What, then, are the ramifications of laws recently passed by the Bundestag (the country’s parliament) that for the first time establish the possibility of corporate criminal liability, as well as financial penalties for companies whose executives misbehave? Frankfurt-based HammPartner was named Germany’s “Law Firm of the Year” for Criminal Defense; Thomas Richter, a partner there, sat down with Best Lawyers CEO Phillip Greer to offer his thoughts.

What does it mean to have HammPartner named by its peers as “Law Firm of the Year” for Criminal Defense?

Thomas Richter: It’s a great honor and an important stimulus—I guess that’s the word you’d use in English. We’ve always tried to keep our profile low, due to the sensitivity of matters in which clients seek our assistance. So you’ll hardly ever see us promoting ourselves. We’re grateful that our peers granted us this great honor. It’s a big deal.

Are there any cases over the last year or two of which you’re particularly proud?

We adhere to the utmost discretion; that goes without saying. I’m afraid therefore that I can’t go into specific detail for specific cases. But there are, of course, some landmark cases already in the public domain. We’ve been active in some of the most complex trials of the past decade regarding environmental crimes.

Another notable case, brought before the Federal Supreme Court, raised complex questions within the interface of antitrust law and criminal law. And we’re currently defending a client against one of the first indictments for a new felony—an alleged market manipulation under the European market-abuse regulation. That’s kind of a test trial, and it’s being closely watched. We’ve strongly benefited from our unique experience in proceedings before the Federal Constitutional Court and the Federal Supreme Court. That’s a unique selling point that sets us apart from our esteemed competitors.

I want to ask about a specific 2017 case in which Rainer Hamm, from your firm, defended the “German James Bond” in a taxation problem. Was that just a routine defense trial, or did the media attention, theatrics and surreal stories make it more complex?

First of all, just yesterday the new trial started before the local court, and we are no longer defending the former client in this new case. But what you refer to as surreal stories relates to the surreal fact that the financial opacity and transparency of international intelligence services made it impossible for tax authorities, and also prosecutors, to evaluate the case according to customary tax-law standards.

Our former client, using the various aliases assigned to him, even by the highest German authorities, had to accommodate himself and his professional activities to this unique environment—which ultimately meant that his handling of a secret fiduciary fund resembled activities of certain tax evasion schemes at first glance. Once it became clear that the financial conduct of the secret services simply cannot be measured by customary standards of public finance, the main challenge was defining the consequences of unclear evidence for the government and the defense. And that’s really all I can say about this case.

Germany is implementing tougher laws to combat corporate crime and corruption. What are your thoughts?

I’m a little skeptical. Of course, everybody is excited about the new law, but I’m doubtful it will achieve its ultimate goal. The introduction of the new law regarding corporate crime is supported by a number of strong advocates, but in my opinion, the proposed law will hardly achieve its goal—namely, to improve the perception of justice in the general public.

The reason is that a company simply cannot be put in jail, and any corporate sanctions would, therefore, have to be primarily monetary. In our observation, in jurisdictions that already recognize the concept of corporate criminal liability—such as the United States—there is often public outrage when companies are fined but no individual is held responsible. We, therefore, believe that the German public will soon start to realize that imposing a fine on a company is different from putting an individual behind bars.

Is criminal law becoming more complex as society evolves?

Yeah, I believe that’s absolutely correct. We also see that criminal law is used more and more—you could probably even say abused or misused—for mere steering purposes. It has become a real trend to criminalize all kinds of activities that no longer require any intuitive sense of culpability, so to speak, or any sense of what ought to be legal or illegal.

We’ve observed a worrying trend for some years: depersonalization of individual actions and guilt in favor of mere procedures—the individual becomes less and less important, and there’s a stress on just following certain procedures. We also see a trend toward the privatization of criminal law due to internal investigations conducted by large law firms, as opposed to prosecution agencies.

This interview has been edited for length and clarity.

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