Updated: Jun 3, 2020
When you speak of forensic law most would think fraud investigations which is part of it (and not something I am interested in). But it started out, for me anyway, differently. Back in 1998, I was a young newly admitted attorney working at a well-known human rights law office in Johannesburg. The premier client was Nelson Mandela, still the South African President and legend. He had a problem with his face being copied everywhere, T-shirts, coins, whatever, and the royalties so raised were not being paid to the Mandela Children’s Fund which at the time held the rights to his face and likeness. Since I was the only attorney there with a police background I was told to find a solution.
In law, the answer was very easy: Identify the culprits, interdict them, attach their goods, and civil claims for damages. Yes, easy, but, it was totally ineffective and there didn’t seem to be a lasting solution. The textbook answer did not work.
Lesson One: The client wants solutions that are cost-effective and efficient. And so I asked myself, “What can the practising attorney/advocate do to assist the victim of crime or some civil injustice? What can we do to protect the abuse of Mr Mandela’s face?” This was the birth of what I called “forensic law.”
In the years to come, the term (forensic law) would be brazenly copied by auditing firms, lawyers and others. They all went the easy way, the fraud investigation way. Most failed, in my opinion, to ask the forensic question - What can you do to assist the victim of crime or some civil injustice? The answer is much broader than a mere investigation, this is only the start, not the end.
My question turned the legal system upside down since up to then the victim was left to the tender mercies of state prosecutors (of which I was one just after qualifying as an attorney). Or in other words, no one cared about the victim at all. Let us say that your company is defrauded, well, call the police detectives and hope that they do their jobs. Yes, trust the failed system to protect you and to give you justice... That was the standard answer.
Forensic law changed this view – now you could call your attorney and he would call a private investigator on your behalf. This is of extreme importance to gain legal privilege against the private investigator, sadly so. I had a case where a “forensic accountant” sold his findings to the other side. We blocked him with privilege counterclaims. The court agreed with me. But if not for that, my client would have lost millions. Another lesson learned. Additionally, mostly, the culprits are close to the client, a child, wife, the best worker (always the first suspects – the one that never takes leave – number one suspect) and the client normally, therefore, does not wish to press charges. The matter must be kept secret. That is where legal privilege comes in.
With the years I realised that prevention is the only answer. There are many things that can be done to safeguard yourself and your company before the worst happens. As an example, employee contracts can be structured to include lie detector tests to see who was involved in the robbery, kidnapping, etc. since few of these things are not an inside job. See my book, Safety Net, about security & law, where I go into detail regarding the way that insurance companies are driving solutions which are no solutions at all. We need out of the box thinking. At the same time, the answer lies in compliance. If you do nothing wrong, take no shortcuts, don’t try to play the game, etc. you are safer than most.
The final lesson, you cannot beat experience. My system saved many lives across the world. I am proud of that. I am helping the victims of crime or civil injustice. I will not act for a criminal.