Not taking secrets to the grave (oh and Independent Investigations NDAs again (AGAIN!))

Ben White of Crafty Counsel has posted a really interesting interview with Pav Gill, former Head of Legal for Wirecard’s Asia Pacific Region. I urge you to listen, whether lawyer or not. It draws out the story wonderfully and succinctly. Lawyers may find the quiet terror of it discomforting.

I set out here quick outline of, and a thought or two on, the story, important in its own right. I hope I do it justice. I want to emphasise how it strikes so many chords with the other cases I have followed and what people in practice tell me can be real problems that can ruin companies’ and professionals’ sanities.

Pav had trained and worked in blue chip commercial firms A&O, Clifford Chance and King and Spaulding before going in-house. His attitude when he joined Wirecard was he wanted to make a good impression and get on not look for red flags (which with hindsight at least he could see littered before him). Wirecard’s Asia operations sound chaotic, like a start-up he said, whereas the German operation appeared to be run in the way he’d expected sensible, mature corporates to be run.

Not long after joining he was approached by internal whistleblowers about illicit transactions marked by fake contracts and ’round tripping’ (transactions with fake companies where the money left and then arrived back in Wirecard to boost trading/profit figures: fraud). A Deputy GC in Germany approved an internal investigation and Gill instructed an external firm. This turned up evidence related to key staff including one who was particularly powerful and reported to the Wirecard Board. With the Deputy GC on leave, Gill needed to report on the matter urgently (one of the internal whistleblower was threatening to go to the police) so contacted the GC proper. The GC told him to stand down, they would investigate it for the Board was said, even though the Board, or some on it, were implicated by some of the evidence. The Investigation changed into a gap analysis (a watered down, how can we learn the lessons kind of review in essence). Gill says an anonymous whistleblowers helpline was created, ostensibly to encourage whistleblowing, but actually as a means of collecting intel on the internal whistleblowers so they could be managed/discredited. Increasingly, Gill felt threatened directly by a senior exec and through an “omni-channel effort to make life difficult”. Students of whistlebowers will recognise the playbook: fake HR issues about him emerged; his work was trawled for signs of incompetence. More extremely, he was tipped off that an overseas work trip might be a one-way trip. His life, in other words, was under threat. He refused to go and was fired taking a secret cache of documents on the fraud. The intimidation continued: he and his mother was followed and he was repeatedly approached for what he thinks were fake interviews, presumably from journalists, in the hope he would breach an NDA he signed on exit and could be sued thereafter. The Big 4 accountants, he says were commissioned legitimately (I assume he means they did not know they were part of a campaign of harassment) to investigate and raise concerns about individuals likely to be troublemakers, even after they had left.

As is now well-known, perhaps fed up with the campaign of harassment and a sense of justice unfinished, Gill spoke to the FT. It led to Dan McCrums incredible investigation (in the face, of course of SLAPP tactics) and book (£3 on Kindle). Intrestingly, Gill mentions in passing, he was not sure it was the right thing to do as a lawyer at the time (he is sure now). Gill had discovered strong evidence of a fraud, reported it up the food chain, and seen the attempt to cover it up and yet the instinct to preserve client confidentiality (backed perhaps by worries about legal professional privlege) was still strong. He is also plainly aware that whistleblower can be painted as ‘leaky’ (my word) or inclined to complain; something he rejects, speaking level headedly about what to do when something appears too good to be true. In essence, his advice is, investigate with an open mind: don’t turn a blind eye. It’s kind of interesting the advice needs to be given, right?

Readers of this blog will recognise, murderous threats aside, the shape of this story. Independent investigations spiked, or bent to the will of powerful executives harming the true client, the company. NDAs used to suppress and intimidate. The use of legal and other resources, including the reputational clout of those they instruct, to intimidate whislteblowers and those who report on the wrongs. One matter on which paid action is possible and needed is proper guidance for lawyers on handling or becoming whistleblowers. I have heard too often half thoughts about privilege and confidentiality and the ways in which this interacts with investigations, proper reporting, and addressing of executive, wrongdoing. It is an issue that has lurked on the regulatory agenda for some time and it should be accelerated up it.


A brief overview of Wirecard for the uninitiated is on Wikipedia.

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