Partner Perspectives: Napatorn Dasananjali Termglinchan

Napatorn as a leading lawyer working at the biggest international law firm in Thailand, can you share with us the journey that led you to where you are today?

I did my undergraduate study here at Chulalongkorn University in Thailand, and right after my graduation I started to work as a lawyer here at Baker McKenzie. After working for a few years, it was my privilege, I got a scholarship from Baker McKenzie to further my study for Master’s degree in law at the University of Cambridge in the UK. And after that I came back and continued to work as a lawyer here. So I can say that Baker McKenzie was my only workplace throughout my 14 years.

Can you tell us about your practice and areas of specialism?

For me, I would categorise my area of specialist into three areas. My first focus would be the investigation, compliance and ethics. My second focus would be on this consumer goods in retail industry. And my third focus would be on an M&A, the merchant acquisition. But specifically for the investigation compliance and ethics, I would say that connected risk management is one of our differentiators from artefacts.

So we here at Baker McKenzie, we offer the client with identify risk and address those risks and then tie it all back up for changes. So I would say that our advice would include the compliant perspective as well as the investigation perspectives.

As a leader for this practice group, what are the latest trends you are seeing? What kind of risks on the rise?

Trends that I’ve seen in most of the industry would be the use of technology and naturally bring challenges and risk to the company settings. So the company might use technology in different perspectives, including to collect data and to analyse data as well as to use technology in communication purposes. So that’s all my experiences. I see the company using technology by giving up employees, their personal devices or maybe some companies might even setting up their application themselves for the employees to use both internally and externally.

Some company keep their data on cloud services, they use the cloud technology to store that company’s data, employees data, suppliers status or maybe customer data. And recently a lot of the companies implementing the AI technology in their workflow as well. So that opened the avenue the new avenue for fraud that has never happened to happen and it may allow the fraudulent activities to go unnoticed.

How can a company prepare when conducting an internal investigation?

So I think the first thing the company need to consider is whether an investigation is actually needed. Sample of scenarios where investigation may not be needed included inquiries of that the answer would be very simple and straightforward or maybe the concerns that may not violate the company’s rules or does not violate the law and but if the investigation is actually needed.

So the company need to consider whether it could be the external investigation or internal investigation. Cases where external investigation should be made would be that in the case of the incident related to the management or maybe the directors of the company or executives of the company or in the event that there’s a conflict of interest of the company. So in those cases, we suggest that external investigator should be included in the investigation process. But if it is considered that internal investigation would be applicable to the cast, maybe the company should start first with identify the lead investigator. So when we identify the lead investigator, we should also identify the team members who will be handling this case. So that could be the HR person and the legal team members or maybe other relevant member, depending on the nature of the case.

After that, we should inform the stakeholders that there’s been an ongoing investigation. After that, the team might have to plan the investigation. The plan should probably include what to be reviewed. For example, what kind of documents are we reviewing with that kind of documents online or it’s a software or it’s a hard copy? Where are they located? How many years have we have to look at these documents? How many people do we need to interview? How many employees do we need to review to interview? External people, for example, like suppliers or our customers? The time frame that we need to set up for the interview, so we need to mention whether it has to be finished by one week or maybe in one month, depending on the nature of the case. We need to see whether a forensic technology or forensic investigation would also be required. Are there any other mobile phone, laptops or shacks that we need to look through the details?

After that, we conducted the investigation during the investigation that suggests that when we do an interview, a summary must be prepared for each interview because we don’t know at that time when we start doing the first few interviews, we don’t know which are those information are actually the key point to the test. So we should record that in in the note right away. And after that we’ll get back to the team, analyse to see all the legal grounds, come up with disciplinary actions, if there are any, and then maybe an advisor to how many should file a legal case against anyone involved in the case.

What resources are available to conduct an internal investigation properly?

In terms of internal investigation, I think the first thing that the company need to have in place is a protocol to conduct the internal investigation. So this protocol should cover all key areas including the team access it previously, which may be the escalation protocol, the time frame to conduct the investigation, how to set up the team of people to lead interviews, the non-retaliation policy and sometimes to include a format of the document, maybe a summary so that once the investigation is completed, the team member can prepare the summary in the same format for the management to consider the test. So that should be the protocol that a company should have in place so everyone can follow the protocol.

Second thing that the company should consider would be the forensic tools. So based on my experience, when we conduct an interview, only reviewing the e-mail from the servers currently may not be enough because a lot of people in Thailand, the trends in Thailand, people don’t usually use e-mail anymore. Or sometimes if it is unformal, they tend to use chat application instead, sometimes with companies mobile phone and sometimes even with their personal mobile phone. So I think forensic tools come handy in these situations where you can obtain like data and chat records from both the laptop, the computer, notebook, the mobile phones. Especially sometimes we can retrieve the hidden or maybe the deleted photos, files or chats records from these devices as well. So a lot of the time we found important evidence from the forensic tools.

And the third one, the third tool that I want to mention here is that the company should encourage their employees to speak up by implementing the whistleblower programme. So the whistleblowing programme could be conducting different channels. For example, you can set up maybe a hotline call for the employees to call and report the issues, or maybe set up the e-mail inbox for them to write an e-mail to that e-mail, or maybe via the website which the reporter can anonymously report the incidents. So whether the company would choose one of the channel or the channel would depend on the on the company’s discretion and appropriateness. So that would be the three main tools that at least the company should have to conduct internal investigation.

Are there any differences in how privilege operates in civil, criminal, regulatory or investigatory situations?

In Thailand, a similar concept of client privilege does exist, especially in the court case proceedings. In single proceeding case, the lawyer actually has a privilege not to disclose the attorney plan and communication. However, if the court deems that the reversal is unreasonable, the court may order the lawyer to disclose that piece of information. But differently in the criminal proceedings, the court actually have the power to order the disclosure of the attorney plan communications and for the regulatory and investigatory situations.

In that cases, some regulators, they have a power to order the lawyer to disclose the attorney-client communication. But however, as the disclosure of this information by a lawyer is a criminal offence, the lawyer can actually refuse to disclose this information to the legislators. However, the legislator can again apply for court order. If they think that those piece of information are crucial to the case, they can apply for court order and if the court agreed, then the lawyer needs to disclose the information according to the court order.

Can notes of interviews with employees and other documents produced during investigations be covered by privilege?

So subject to the privilege and the Thai law. If the notes are actually prepared by the licenced lawyer according to the Thai Lawyer Act, that would not be covered by privileges. However, if it is prepared by a non-licenced lawyer, that would not be covered.

Lastly, can you give us a practical example of how you have helped clients?

Actually here we can see we provide a full service to the client for investigation. One of the cases we handled was the fraud committed by the executives of the company. So this case was initiated by a new high accountant who reviewed the documents and found something odd, something uncommon. So that newly high accountant raised the issue to her supervisor.

So her supervisor informed some of the management and then they decided that as it is related to the management of the company, they decide to involve the external lawyers to the cast. So we are there to help them. So we set up our team together with the client. They also set up their team members for maybe six or seven people. We plan the investigation. So there were about 50 employees to interview at that time. We also need to interview the suppliers and some of the customers and we have to review the documents, more than thousands of documents at that time because it’s stayed back nine years. So it has been a long going ongoing case.

The company also set up the use the forensic data, so we get to read all the communications in e-mail and in chats and we are not analysed that information. So, we’ve been working with the clients closely for about two months to obtain all of the information. Then we came up with a solution for the client including the disciplinary actions and the court case to be perceived. So at that time we also assist the client with the termination of employment of that management and we together with our litigators file a case, two cases actually against the management and the related parties.

So after that incident we also assist the client in reviewing that policies for example like the anti-corruption policy and library policy and other relevant policies. We did a training for the clients and we helped support the clients along the way that they operate the business. So as I said, we provide a full legal source from the policy trainings and then when the clients actually have an incident, so we help them investigate and finally we help them with the litigation cases.