Category Archives: Client Relations

On Auditors, Lawyers & Data

corp-counselWhen it comes to gaining access to sensitive, internal digital data during a forensic examination, the corporate council can be the fraud examiner’s best ally.  It, therefore, behooves us to fully understand the unifying role the client counsel holds in overseeing the entire review process.  As our guest blogger, Michael Hart, and other experienced practitioners have pointed out, data analysis becomes most effective when it’s integrated into the wider forensic accounting project.  If the end results are to cohere with findings from other sources, forensic data analysis should not be performed as a separate investigation, walled off from the other review efforts undertaken to benefit the client. Today, it’s a truism that data analysis can serve many functions within a forensic accounting project. On some occasions, it’s rightfully the main engine of an engagement. When such is the case, data analysis is used for highlighting potentially unusual items and trends. More often, however, in actual practice, data analysis is a complementary part of a wider forensic accounting investigation, a piece of a puzzle (and never the be all and end all of the investigation), that involves several other parallel methods of information analysis or evidence gathering, including document review, physical inspection, and investigative interviews.

The timing of the data analysis work depends on the extent to which the forensic accounting team needs to work with the results as defined by counsel. Frequently, once the method of a fraud has been established, data analysis is conducted to estimate the amount of damage. If the team knows that several components of an organization were affected by a fraud scheme, that team may be able to compare these results with those derived from analyses of unaffected branches and, after adjusting for other relevant factors, provide management with a broad estimate of the total effect on the financial statements. When such an approach is used, the comparison should be performed after the investigation has determined the characteristics of the fraud scheme. However, in most cases, as the ACFE tells us, the purpose of data analysis in an investigation is to identify suspicious activity on which the forensic accounting team can act.

Suspicious transactions can be identified in several ways: comparing different sources of evidence, such as accounting records and bank statements, to find discrepancies between them; searching digital records for duplicate transactions; or identifying sudden changes in the size, volume, or nature of transactions, which need to be explained. While data analysis often is a fast and effective way of highlighting potential areas of fraud, it will never capture every detail that an experienced fraud examiner can glean from reviewing an original document. If data analysis is performed to identify suspicious activity, it typically is performed before any manual review is carried out. This helps ensure that investigative resources are targeting suspicious areas and are concentrating on confirming fraudulent activity rather than concentrating on a search for such activity within a sea of legitimate transactions.

The first person to be contacted when there is a suspected fraud is typically in-house counsel. Depending on the apparent severity of the matter and its apparent location in the company, other internal resources to be alerted at an early stage, in addition to the board (typically through its audit committee), may include corporate security, internal audit, risk management, the controller’s office, and the public relations and investor relations groups. Investigations usually begin with extensive conversation about who should be involved, and the responsible executives may naturally wish to involve some or all the functions just mentioned.  Depending on the circumstances, the group of internal auditors (if there is one) can in fact be a tremendous asset to an independent forensic investigative team. As participants in the larger team, internal auditors’ knowledge of the company may improve both the efficiency with which evidence is gathered and the forensic team’s effectiveness in lining up interviews and analyzing findings. The ACFE advices client executives and in-house counsel to engage an external team but to consider making available to that team the company’s internal auditors, selected information systems staff and other internal resources for any investigation of substantial size.

The key to the success of all this from the forensic accountant’s point of view, especially in gaining access to critical digital data, can be the corporate counsel.  On one hand, the forensic accounting investigator may find that the attorney gives the forensic accounting investigator free rein to devise and execute a strategic investigative plan, subject to the attorney’s approval. That scenario is particularly likely in cases of asset misappropriation. On the other hand, some attorneys insist on being involved in all phases of the investigation. It’s the attorney’s call. When engaged by counsel, forensic accounting investigators take direction from counsel. You should advise per your best judgment, but in the end, you work at counsel’s direction.

When working with attorneys on projects involving sensitive digital data, forensic accounting investigators should specifically understand:

  • Their expected role and responsibilities vis-à-vis other team members;
  • Critical managers and players within the information systems shop and their various roles;
  • What other professionals are involved (current or contemplated);
  • The extent and source of any external scrutiny (SEC, IRS, DOJ, etc.);
  • Any legal considerations (extent of privilege, expectation that the company intends to waive privilege, expectation of criminal charges, and so on);
  • Anticipated timing issues, if any;
  • Expected form, timing, and audience of interim or final deliverables;
  • Specifics of the matters under investigation, as currently understood by counsel;
  • Any limitations on departments or personnel that can be involved, interviewed, or utilized in the investigation process.

Independent counsel, with the help of forensic accounting investigators, often takes the lead in setting up, organizing, and managing the entire investigative team. This process may include the selection and retention of other parties who make up the team. Independent counsel’s responsibilities typically encompass the following:

  • Preparing, maintaining, and disseminating a working-group list (very helpful in sorting out which law firms or experts represent whom);
  • Establishing the timetable in conjunction with the board of directors or management, disseminating the timetable to the investigating team, and tracking progress against it;
  • Compiling, submitting, and tracking the various document and personnel access requests that the investigating team members will generate;
  • Organizing client or team meetings and agendas;
  • Preparing the final report with or for the board or its special committee, or doing so in conjunction with other teams from which reports are forthcoming;
  • Establishing and maintaining communication channels with the board of directors and other interested parties, generally including internal general counsel, company management, regulatory personnel, law enforcement or tax authority personnel, and various other attorneys involved.

As fraud examiners, we’re frequently conversant in areas related to financial accounting and reporting such as valuation, tax, and the financial aspects of human resource management but conversant doesn’t necessarily indicate a sufficient level of knowledge to fully guide a complex organizational investigation.  What we can do, however, is to work closely with the corporate counsel to assist him or her in the building of a team on the back of which even the most complex examination can be brought to a successful conclusion.

Value Added

value-addedI was reading an article in one of the business magazine to which I subscribe the other day in which a well-known business pundit was reporting that the Fortune 500 companies he interviewed for his article were becoming more and more concerned with getting increased levels of value at every level from their investments in their co-partners.  This search for higher levels of value means more pressure for performance at those same management levels and with more pressure, as every CFE knows, comes more potential for management frauds.  Fraud prevention programs cannot be immune to this phenomenon.

CFE’s have traditionally not had to consider the importance of adding value when performing their investigations since, in the case of a suspected or identified fraud, the ‘value’ of the investigation was all too apparent, i.e., to describe and, possibly, prosecute the fraudster and to lay the ground work to prevent a similar instance of the same scenario from recurring. Beyond the written report of the investigation itself, follow on (if there was any) typically consisted of verifying compliance with policies and procedures, without providing recommendations for improvement of the fraud prevention program itself or performing other consultative activities. The fraud examiner’s role was often more akin to that of a police officer than to that of a business partner.

In today’s environment, however, the evidence from practice increasingly indicates that CFE’s, like all other co-parties, are under increasing pressure to provide services that enhance the value of their client’s investment in the valuable fraud prevention services CFE’s can provide, as adding value is becoming widely considered an integral part of even the investigative process.  But what does adding value entail, and how do CFE’s provide it? While the answer may vary depending on individual circumstances, CFE’s make potentially value-adding contributions throughout the entire investigative process and in almost every aspect of our work.

When management engages the services of the CFE, it’s applying a governance control.  CFE investigations provide management, the board of directors, external auditors, and, most importantly, the audit committee with vital information about the fraud and about the key controls whose failure allowed it.  This information is the groundwork for the prosecution of the fraudster, for corrective action, for the repair of the control structure, and vital for future fraud prevention.  This type of information may or may not be possible for CFE’s to quantify monetarily in all cases, but it definitely constitutes a value-added service to management.

Most large organizations employ some sort of risk-based fraud prevention plan or program. Management, needs to address the highest fraud risks within its organization, and the fraud prevention program must reflect and address those risks. It’s here that CFE consultation can prove invaluable.  A plan developed by incorporating the organization’s highest risk departments, business units, processes, and their respective fraud prevention controls makes effective use of limited organizational resources and thereby also adds value through efficiency.

During an engagement, the CFE may observe numerous opportunities for anti-fraud related process improvement or other enhancements that might ultimately either increase the organization’s security or help fulfill its over-all duty to protection its assets. But a word of caution. While this activity constitutes adding value, investigators need to be wary of overstepping. If they come to believe every engagement should routinely include a recommendation to improve the organization’s fraud prevention effort, practitioners risk directing organizational resources ineffectively. An investigator who spends too much time looking for improvements or added controls may be harming the organization by misdirecting resources that could be applied to more critical areas.  In evaluating risk versus reward, investigators must determine if the effort and resources expended to find an improvement are worth the potential benefits.  Key to prevention of this misstep is to communicate closely with your client and use that communication to never lose sight of how your investigation fits into the bigger picture of overall management objectives for its organization. It’s within that overall context that the fraud prevention effort should always be embedded.

Management, boards of directors, audit committees, and corporate counsel will all rely eventually on the fraud examiner’s report on the facts of an investigation and on the related fraud prevention controls over the processes and risks within the organization, and they will likely view this information as value-added.  So, to add value effectively through reporting, CFE’s need to consider where they want their audience to focus. Accordingly, they should consider the needs, wants, and resources of the various stakeholders who have engaged them. The final investigative report should be easy for readers to navigate, and if appropriate, it should stratify findings into categories of importance to effectively support the dual objectives of possible prosecution and immediate remediation.  With that said, every well written fraud report will add future value through its impact on the organization’s fraud prevention effort and the investigator should write it with an eye to that important follow-on objective.

Fraud examiners are recognized by the courts and by the public as fraud specialists. Their expertise in this and related areas enables them to help management analyze fraud related risks to the organization and to assist in the design of controls to mitigate those risks. By having the expertise to perform investigations, research issues, and benchmark with peers on best practices, CFE’s can become a truly valuable resource to any client management for fraud prevention program design. These activities also constitute adding value.

Developing a complete understanding of all the aspects of how the fraud examination process fits into the client organization should be an ongoing undertaking that also adds value, though it may be difficult to quantify in terms of dollars saved, or earnings, or reduced risks. To a degree, CFE’s, as I said above, add value simply by performing their functions effectively and efficiently. But careful attention to the organization’s risk profiles and to the information requirements of various players in the organizational governance framework represent an ongoing challenge to fraud examination and forensic accounting practitioners alike, and are the key to ensuring that the value they add is maximized.

Not for Sale

expert-witness_2by Rumbi Petrozzello
2016 Vice President – Central Virginia ACFE Chapter

As soon as John Turturro flashed onto the screen, in an ad for the HBO limited series “The Night Of”, I knew that we would be watching the show, even if it turned out to be an eight hour ad for dish detergent. My husband is a huge John Turturro fan, and misses nothing in which the actor appears. Fortunately, “The Night Of” turned out to be a very engaging crime procedural that had us hooked from the first episode.  The show was great in that it got us thinking about the criminal justice system. They even had a CPA who was not a stereotype – where you start feeling sleepy just at the sight of him – and he even came with a few surprises too. What really caught my attention on “The Night Of”, however, was not the portrayal of the CPA but of the expert witnesses.

During the investigation, the prosecutor deals with two forensic experts she expects to put on the stand during the trial. In both cases, she speaks with them to find out if the evidence that they have analyzed will help her convict the accused, Nazir Khan, of murder. In one case, she speaks with the medical examiner about how the suspect injured his hand. She then not only suggests a scenario (that works in her favor) which is different from his analysis but also coaches him until he sounds convincing. She also consults an expert about the possible effects of certain drugs and, again, pushes for an opinion that will help her case. In both instances, the experts seem to have no problem changing their narratives to suit the prosecutor, their client.

I was both horrified and disappointed by the ease with which this happened. When I scoured various recaps of the episodes, the critics either skipped over those moments on the show or wrote about them as though they were just par for the course when dealing with expert witnesses. Even when I read articles about the show that consulted and interviewed legal experts, the conversation was centered mainly around the lawyers’ behavior in the court room and on life in prison. Not a single legal expert (all lawyers in the pieces that I read) discussed what actually happens in their reality with expert witnesses.

It’s sad that the defense didn’t appear to make any great attempt at challenging the prosecution experts. They did put forth their own witness who, when testifying, did spend time putting forth information that seemed based on science, and not feelings. I was actually surprised that the defense, with its very limited budget, was able to hire their own expert, who came with a very impressive resume that was highlighted when he took the stand. The casual attitude that critics and reviewers have taken, when writing about these experts, hints at how many view the expert witness as a hired gun or shill, out to say whatever their client wants, not as an objective professional, advocating for the truth and, as such, a potentially critical component of the trail process.

When attending continuing education session on being an expert witness, the question invariably comes up – how do I make sure that I am taken seriously as a neutral witness and not simply as someone giving an opinion for pay? There are several steps that you, and the lawyer that you are working with, can take to clarify your position as a credible expert.

  • Money, money, money! It’ss very important to make it clear that you are being paid for your time and not your testimony. Your fee should be based on the time that you spend on the case and should never be a fee contingent on the outcome of the case. Let the judge and jury know that you will be paid, regardless on how the case turns out.
  • In order to maintain credibility and also avoid a possible Daubert motion (raised before or during trial, to exclude the presentation of unqualified evidence to the jury), your work should be based solely on the “reliable application” of “reliable principles and methods”.
  • Of course, you should be able to take the judge and jury through the steps of your investigation, from start to finish. They should be able to see and understand clearly how you came to the conclusions that you have reached.
  • Are you qualified to give the opinions you are giving? Share your qualifications and experience, so that people know that you have received all the relevant training required to support your investigation as well as the conclusions and the facts on which you are opining. Professional credentials, such as the CFE, CFF and CPA, are all viewed with respect, the possession of any of which goes a long way to support your being viewed as a qualified expert.
  • Know your work. When you’re on the stand, be sure that you know the relevant subject matter and all the issues you are testifying about backwards and forwards so that you won’t ever be caught slack-jawed, unable to answer some important question about your work.

It’s a lamentable fact that the current general view of the expert witness, as portrayed on television and in the movies, is that of someone who will say whatever the client pays them to say and that the experts who base their work on facts are viewed as the rare heroes. Taking the steps to establish ourselves as credible and objective will go a long way to building a positive view of all expert witnesses. That and, perhaps, getting a few friends in the film business!

Situational Assessment

fraud-examinationAs a follow-on to our last post, newly minted CFE’s working for their first client can find themselves at something of a loss about the best way to initiate an investigation; I know that was certainly true of me at what now seems so many years ago.

Every fraud investigation is a minefield whose first steps can impact the final outcome significantly. Insufficient care, coordination or discretion at the launch of the investigation may tip off the suspect, causing the destruction of potentially vital evidence. Moreover, information collected hastily without sufficient attention to procedure might prove inadmissible in court, or even lead to sanctions and fines. Any experienced practitioner will tell you that a whole host of challenges beset those of us responsible for looking into potential wrongdoing. But, as the ACFE also tells us, taking the right steps before an investigation can significantly reduce the risk of error, helping to ensure the entire investigation is planned correctly and carried out efficiently.

The ACFE advocates the performance of an initial fact finding or situational assessment phase of every investigation.  The CFE (and his or her employing attorney, if there is one) first need to assess whether an allegation has merit. This process should begin with consideration of the complainant’s credibility and motives (when that person’s identity is known) as well as other possible indications of the allegation’s likely validity. The examiner should avoid snap, simplistic judgments. Just because a complainant lacks credibility or may have ulterior motives doesn’t necessarily mean there is no need for an investigation. By the same token, even a highly credible individual can make an unfounded allegation. Upon close examination, allegations often contain specific facts, especially those related to the workings of the organization, that can help support assertions and provide the CFE a basis for corroboration moving forward.

The recommended initial situational assessment can be additionally vital because insider wrongdoing especially can have a significant impact on the organization, even more so when committed by a member of senior management. The assessment should include examination of monetary, regulatory, reputational, and other known risks.

An obvious goal for the CFE in every fraud case we work is to determine the extent of existing damage and prevent further losses. This can be difficult, as allegations rarely include an exact amount of stolen funds or an assessment of organizational impact. For example, the monetary impact of vendor kickbacks to employees is often hard to assess, as it involves gauging the extent to which the organization may have received insufficient value for the products it purchased. In these circumstances, the CFE may want to assess the extent to which the vendor is used and consider the common fraud risk associated with the industry, organization and type of vendor.

What’s more, in today’s gold fish bowl regulatory environment, issues of concern to regulators increasingly include insider trading, bribery of public officials, manipulation of publicly listed companies’ financial statements, money laundering, and privacy or data breaches. If an organization fails to conduct an adequate fraud investigation or take appropriate corrective measures, the regulator may initiate its own investigation or, where a funding relationship exists, withdraw support from the organization altogether. If allegations relate to an organization’s foreign operations, or involve activities in jurisdictions with extraterritorial legislation, international regulatory requirements should also be considered. Many countries have enacted anti-bribery legislation, including the United States’ Foreign Corrupt Practices Act (FCPA), Canada’s Corruption of Foreign Officials Act, and the United Kingdom’s Bribery Act. Running afoul of these laws can have significant consequences for any of our clients.

And finally, the potential reputational damage to an organization from fraud must never be taken lightly. Examples of circumstances that may pose significant reputational risks include payments to foreign government officials, circumvention of local or foreign laws, and accepting incentives from suppliers.

The CFE and the employing attorney are in a unique position in carrying out the initial situational assessment to collect and evaluate available evidence to assist the organization in its initial understanding of the case and to plan the investigative response. This process may include preparing a preliminary evaluation of the losses or follow-on risks to which the organization has apparently been exposed.  Once the attorney has communicated to the organization the facts and issues, consideration should be given to whether to pursue criminal charges or civil remedies (i.e., recovery of funds), as it will affect the CFE’s approach to the entire inquiry process. For instance, in the United States and Canada, the standard of proof for criminal charges is higher than that of civil remedies. Further, the makeup of the CFE’s investigative team may be different depending on the objectives of the investigation. Decisions may change over time and as new circumstances of the case come to light, the investigative strategy may also need to change.

Ideally, the investigative team for the initial assessment should be kept as small as possible, and participation should be on a “need-to-know” basis. Moreover, team members must not have any conflicts that would, or even be perceived to, impair their judgment or objectivity in the investigation.

ACFE Standards also require that the team be comprised of appropriately skilled and qualified individuals to perform, or at least oversee, the evidence collection process, particularly of electronic evidence. Team members need to be informed that any one of them may be called upon to testify as a witness in court and that notes and work papers are discoverable and could appear before a judge or jury. Therefore, work paper files, including interview notes and communications, should be thorough and carefully maintained. Numerous additional considerations should be kept in mind when choosing members of the investigation team on the front end, including participants’ independence, as well as the potential need for additional legal counsel, supplementary investigative experts, and other expertise. Maintaining independent oversight is crucial to the investigation’s credibility; failure in this area leaves all the investigative findings open to criticism by opposing counsel, regulators, or law enforcement agencies. In many cases, especially those involving financial matters, corporate counsel supported by CFE’s or forensic accountants might be in the best position to manage the overall investigation.

To protect litigation privilege, the employing attorney or independent external counsel will be included in the CFE’s investigation from the beginning. These experts can also advise the CFE on legal matters such as employee suspensions or terminations and evidence gathering techniques to help ensure future court admissibility. Moreover, by adding credibility, counsel, internal or independent, provides assurance that the investigation will stand up to external legal scrutiny.

The independent, reputable CFE can add credibility to a fraud inquiry from first to last, bring current knowledge of relevant issues, and provide or coordinate the acquisition of skills that many companies lack in areas such as computer forensics, analytics, and forensic accounting. Such help is also important if opinion testimony may be required, as the testimony is admissible only if it comes from witnesses (like CFE’s) whom the courts determine are experts. When needed, for example, in cases that may lead to pursuit of criminal charges or civil remedies, supplementary experts should be retained early on. To maintain litigation privilege, investigators and experts should always be retained through the CFE’s employing attorney or external counsel.

Who’s the Client?

lawyer_1While I was away on vacation last week our Chapter received an on-line comment-request from a CFE practitioner currently working on a fraud investigation for an attorney on the legal staff of a major international corporation.   The commenter was seeking some overview information relating to the protection of the content of her soon to be completed investigative report under U.S. law.  As I’m sure most of you remember, the attorney-client privilege applies where there is a (1) confidential (2) communication (3) between attorneys and their clients (4) made for the purpose of rendering or receiving legal advice.

To protect the report of an internal investigation, the report should be communicated to the lawyer (preferably the lawyer should initiate the investigation), it should not be distributed to anyone else, and it should be for the purpose of providing the lawyer information he or she needs to render a legal opinion or provide legal advice. The key element is that the attorney (whether in-house counsel-or outside counsel) is having the investigation conducted for the purpose of providing legal advice to the company.  The privilege generally extends to information gathered by investigators like our CFE enquirer if the investigator is acting at the direction of the attorney.

The ACFE tells us that the existence of the following will help ensure that communications gathered during the investigation will be protected under the attorney-client privilege:

–The communications were made by corporate employees to counsel;
–The communications were made at the direction of corporate superiors in order for the company to obtain legal advice from counsel;
–The employees were aware that the communications were being made in order for the company to obtain legal advice;
–The information needed was not available from upper management;
–The communications concerned matters within the scope of the employees’ corporate duties;
–The communications were confidential when made and were kept confidential by the company.

CFE’s and forensic accountants should not make the mistake of believing that just because an attorney is involved all reports and communications are protected by the attorney-client privilege. The privilege protects only those communications related to the attorney providing legal advice. Often courts will seek to determine whether the attorney was actually rendering legal advice or merely performing investigative services. Some courts have taken a narrow view of the privilege and have held that if the investigation could have been conducted just as easily by a private investigator, then the lawyer was acting as just that, an investigator, not as a lawyer; therefore, the privilege would not apply.

The ACFE cautions that the most often overlooked requirement is that the CFE’s report remain confidential. Even if a report meets all of the other requirements (prepared by a CFE for the attorney for the purpose of providing legal advice), the privilege will be lost if it is disclosed to anyone other than “the client.” In the corporate setting, it’s often hard to determine just who “the client” is. However, it’s generally clear that senior officials within the company are authorized to seek advice from an attorney on behalf of the company and to act on such advice. Accordingly, most courts have held that communications between an attorney and senior-level management are protected, while communications between an attorney and lower-level employees may not be.  Therefore, special care should be taken to ensure that the attorney-client privilege is not waived inadvertently by giving documents or communicating information to anyone outside the investigation team, including members of law enforcement. If information gathered during an investigation is shared with law enforcement, then the privilege may be waived not only as to the information given, but also to any other information relating to the same subject matter. This is known as “horizontal” waiver. Some courts have held that waiver of the privilege as to one document implies waiver as to all documents concerning the same subject matter.

If a fraud examiner or forensic accountant feels that a case should be recommended for criminal prosecution, the examiner should consult with the attorney before providing any information to government or law enforcement authorities. For example, if an investigator submits a copy of his report to the prosecutor who initiates criminal proceedings based on the findings in the report, the criminal defendant may be able to require the investigator to provide all the documents he or she used in writing the report. In such an instance, the investigator may be considered to have waived the privilege. Likewise, if law enforcement requests the results of an investigation or information gathered during an investigation, the attorney should be consulted before turning over the information. Some courts have held that the privilege is not waived if a company is subpoenaed to produce the information.

The work product doctrine protects materials that are prepared in anticipation of litigation.  the Supreme Court has set forth some protection for materials prepared with an eye toward litigation. The Court has stated that the doctrine promoted the “orderly prosecution and defense of legal claims” by providing attorneys with a zone of privacy that was essential to their role as an adversary.  People often mistakenly believe that the work product doctrine is connected to, or is part of, the attorney-client privilege. It is not. One of the main differences between the work product doctrine and the attorney-client privilege is that the work product doctrine is not a privilege. The work product doctrine is a provision of the discovery rules which provides that in certain instances, items will be protected from discovery. As such, the work product doctrine is really a “qualified immunity” from discovery. It differs from an evidentiary privilege (such as attorney-client privilege) in that even if the document falls within the definition of “work product,” the judge still can order that the document be produced if the opposing party can show “substantial need” for the protected information and that the information cannot be obtained from another source. However, even if “substantial need” is shown, the mental impressions and opinions of an attorney concerning the litigation are not subject to disclosure under any circumstances.

In virtually every lawsuit, there will be disputes about what must be produced and what is protected from discovery. The rules are not always clear, and they are not applied consistently in either the federal or state courts. One good, but not foolproof protection, is to put the phrase “PRIVILEGED AND CONFIDENTIAL” at the top of every document produced regarding the case. Of course, this statement is not evidence the document is legally privileged or protected, but it does show an intention to keep the communication confidential, and will alert others that the document contains sensitive information.

Some general exceptions to the privilege rule are:

–Only the holder of a privilege, or the holder’s designated representative, can assert the privilege.
–If the holder, after having notice and opportunity, fails to assert it, the privilege is waived.
–If the holder discloses significant information to someone outside the protected relationship, the privilege does not hold.
–The communication must be pertinent to the protected relationship (a physician and a patient must be discussing health issues), or there is no privilege. Ordinary discussion not deemed confidential is not protected.

The Straight Scoop on Risk

risk-assessmentAny practicing auditor will tell you that information requests, getting the information needed to perform an audit or review, can be one of the most frustrating aspects of any audit work and the information requests involved with fraud risk assessments are no exception.  To successfully complete his or her assessment the CFE must develop a thorough understanding of the client’s overall system of internal control, with special emphasis on those controls over financial transactions that reduce or mitigate fraud risk.  Information requests usually signal the transition from planning to fieldwork for the CFE. How the request for that information is made sets the tone for the assessment, and can help or hurt the CFE-to-client relationship. It can also positively or negatively impact the overall achievement of review objectives, so it’s important to spend the time to get this step right.

It’s been my experience that reviewers new to CFE practice tend to compile their requests for information hastily under the assumption that the sooner they request the information; the sooner they’ll get the reply. However, as we’ve all experienced, information requests can get lost, forgotten, or ignored, and weeks can go by with no response.  Since CFE’s aren’t generally easily deterred, the problem is typically addressed by sending follow-up emails, leaving voice mails, and, as a last resort, knocking on the CFO’s office door in an attempt to get all the requested information prior to the start of serious fieldwork. And the initial request is only the beginning. During some reviews, information requests seem to never end. If the first request was for a list of key customers, a second request for invoicing procedures soon follows and the whole request process starts all over again moving like an arrow straight on through to the end of the assessment.

An alternative way around all this requires a little more work on the front-end but organizes requests so that they are received by the target data source quicker, questions are answered faster, and the CFE builds a stronger relationship with the client.  This is done by scheduling a formal, face to face meeting with the provider of the target information in his or her office immediately following the entrance conference with the CEO, corporate counsel or audit committee who engaged the CFE. The CFE should ask for and receive permission from the CEO before any information is requested from subordinate staff.  The upper management sanctioned meeting with targeted business process expert staff (say the CFO or Chief Information Systems Officer-CIFO) takes place prior to any formal information request being submitted in writing.

Meeting with the targeted business process staff in this way has many benefits and, in my experience, is well worth the time. In addition to supporting a general discussion about what information is available, it’s often possible to obtain some of the requested items themselves during the face-to-face.  I’ve often been directed to the information I want on the company databases simply by directly asking the CIFO for it.  Such meetings are invaluable to the CFE since they provide an opportunity to improve her knowledge of the business and strengthen her relationship with business process owners.  This approach doesn’t excuse CFE’s from doing all he or she can beforehand to develop as much understanding as possible of what items of information they would like to request during the meeting; this is because it’s common to learn something new about the control system of a business process in a meeting with a process expert that makes some aspect of the original request irrelevant. The best way to avoid this is to have developed a solid overview of the fraud risk assessment process, its steps and objectives, so the CFE can quickly regroup and make a new request that better satisfies the complete, overall assessment objective.

During the meeting(s) with individual process owners the CFE should provide a brief overview of the assessment and its objective(s); this will help communicate the reason for the specific information requests. Through an easy give and take the CFE can explore with the process expert where the requested information is housed and how it might best be accessed. A benefit of this approach is that all clients appreciate having the assessment objectives and requests explained to them in person. They are more willing to provide the documentation and answer the inevitable follow-up questions that arise later because they have a clear understanding of what is needed and why.  If, during the discussion with the process expert, the reviewer realizes a change needs to be made to a request, it can be addressed in real time. This also saves the CFE from having to send an embarrassing email apologizing because he or she inadvertently requested the wrong information.

Following discussion of all the requests, the CFE should consider wrapping up the meeting by asking a few questions about how the business is doing, if any new initiatives are being undertaken, if that new financial system software is meeting expectations, etc. Anything learned about the business will improve the CFE’s ability to make fraud prevention recommendations and may identify other areas of fraud vulnerability to look into at a later time.  Working to obtain this useful control related information is much easier face-to-face than over the phone or via email.

After the meetings with the client’s business process expects are finished, the CFE and his or her team (if any) will be able to start testing immediately because most of the requested documentation has been obtained or its location identified. Another benefit to this approach is efficiency, because it can significantly reduce the time spent waiting and following up with the business process owner. It also allows the CFE to use his or her time effectively.

It is much better to spend one hour with the client up front than to spend an hour each of the following three weeks sending follow-up emails.  The best-case scenario is that the CFE walks out of the meeting with all the information requested in hand or its location identified and ready to start reviewing and testing. The worst-case scenario is that the CFE leaves the meeting without the requested information, but now knows where the supporting documentation is located and can pull the information him or herself. Regardless of the outcome, the auditor has spent time building a stronger relationship with the client’s business process owners and may have received some valuable information related to that department or business process that could never have been obtained through a seemingly endless email drive.

The Expert & the Internet

expert-witnessesPart of the wrap up process our Chapter performs following each of our two day seminars is a review of attendee question topics.  As nearly all of them do, our recent ‘Investigating on the Internet: Research Tools for Fraud Examiners’ seminar elicited a number of thoughtful questions, several from attendees whose practices include testimony as an expert witness and employment as legal consultants.   From the tenor and content of the questions it appears that these CFEs were acting as experts and consultants in the legal process by assisting attorneys with the financial details of a suit, and testifying about these practices at trial. In such cases CFE’s analyze documents and transactions, both internet based and hard copy, showing how the fraud was accomplished and, when possible, who the most likely perpetrators were. The CFE acts as a guide and adviser for the attorney in assembling the case, and, sometimes, as a major participant as an expert witness in explaining the ways of fraud to a judge and jury.

Experts, in general, are brought in when required by law, as in malpractice suits where a member of a profession, say a physician, has to explain the infraction against professional by-laws or principles; where key points are deemed sufficiently technical or complex, like “cooking-the-books” schemes involving intricate accounting manipulations; or for assisting (some would say, for swaying) the jury in making its final decision.  Federal Rule of Evidence 702 tells us that an expert witness with appropriate knowledge and credentials may testify in any proceeding where scientific, technical, or specialized knowledge will shed light on the dispute.  Even in cases that don’t go to trial, experts may still be involved in mediation, arbitration, settlement conferences, or summary judgment motions. Experts contribute value to the trial process in a myriad of ways. They provide background information to guide and frame a case; during discovery they investigate, run tests, advise on depositions, prepare other witnesses, make exhibits, and respond to the opposition’s discovery requests; they file written opinions, which are entered as evidence into the court record; and they testify in actual proceedings should the case actually make it to a courtroom.

Once they accept a case, many experts immediately begin utilizing on and off-line tools to start the process of assembling a narrative version of the events. This detailed summary of the facts of the case serves as the raw material for rendering an official opinion. It’s important that the narrative text be written with care and professionalism. The text may (and probably will) have to be produced during discovery. Additionally, a well-written narrative helps the client attorney in preparing and executing the case at trial.  As our speaker, Liseli Pennings, pointed out, perhaps the thorniest challenge for CFEs, once they’re engaged to work on a case, is setting a value on business losses due to fraud. Even though financially related information available on the internet and elsewhere can be of great value in estimating the loss, there may be several methods appropriate for evaluating net worth/net loss appropriate to a given case, each rendering a different number at the end. And regardless of the numbers, there’s always the human element.

Article V. of the Association of Certified Fraud Examiners Code of Professional Ethics states:

A fraud examiner, in conducting examinations, will obtain evidence or other documentation to establish a reasonable basis for any opinion rendered.  No opinion shall be expressed regarding the guilt or innocence of any person or party.

The rule that prohibits opinions regarding the guilt or innocence of any person or party is a rule of prudence. Clearly, it’s prudent for a Certified Fraud Examiner to refrain from usurping the role of the jury. In a courtroom, no good attorney would ask a Certified Fraud Examiner for such a conclusion, and no alert judge would allow such testimony. The fraud examiner’s job is to present the evidence in his report. Such evidence might constitute a convincing case pointing to the guilt or innocence of a person. But a clear line should be drawn between a report that essentially says “Here is the evidence” and one that steps over the line and says “He is the guilty (innocent) person.”  Nevertheless, there is a fine line between recommending action – forwarding the evidence to a law enforcement agency or filing a complaint or lawsuit – and giving an opinion on guilt or innocence. Certified Fraud Examiners may make such recommendations because they think the evidence is strong enough to support a case. They might even have a conclusion about whether the suspect committed a crime. The rule does not prohibit the Certified Fraud Examiner, under the proper circumstances, from accusing the person under investigation. However, the ultimate decision of whether a person is “guilty” or “innocent” is for a jury to determine. The CFE is free to report the facts and the conclusions that can be drawn from those facts, but the decision as to whether or not a person is guilty of a crime is a decision for the judge or jury.

As Liseli pointed out caution as to information reliability is the by-word for every use of internet based information in general and use by expert witnesses is no exception. According to discovery rules governing expert testimony, everything the expert says or writes about the case after being hired is subject to discovery by opposing counsel. That means everything: internet downloads, narrative versions of the case, comments to the press or law enforcement, hypothetical reconstructions, even notes can be demanded and used by the opposing party.  However, CFE’s acting as expert witnesses need to be aware of the consulting expert exception.

Experts may consult on the attorney’s work product, i.e., materials the attorney prepares as background for a case. While performing background work, the expert is said to be working as an associate of the attorney, so the exchange is protected…they are two professionals conferring. However, once the expert is hired as a witness, and begins entering opinions as part of the attorney’s case, there is no privilege for any contribution the expert makes. The distinction is something like this: when acting as “witnesses,” experts are bringing official information to the court, and so must disclose any contact with the case; when experts act as “consultants” or “associates” for attorneys or law enforcement, they are only assisting the attorney, and do not have to disclose their involvement in the case.

There is one trap for the unwary. The rule is that if an expert will testify at trial, everything s/he does regarding the case must be turned over to the other side. If an expert works only as a consultant to the attorney, then her work product is not discoverable. However, if a testifying expert reviews the work of the consultant expert, then the work of the consultant expert will be discoverable. Just remember this, if you are hired to testify at trial, anything you used to form your opinion will be subject to review by the opposing party. This includes information downloaded from the internet, notes from other experts, documents received from the plaintiff or defendant, and any documents or notes from the attorney. Be sure to consult with the attorney before you review anything. If the attorney has not given the document to you, then ask before you read. Otherwise, you may inadvertently destroy the confidentiality or privilege of the material.

The utilization of internet based information resources introduces yet another layer of complexity to the employment of CFE’s as expert witnesses and/or attorney consultants.  The information available is often vast, almost instantly available and constantly changing.  Practitioners and their client attorneys must decide on a case by case basis whether it’s best utilized in the role of a consultant or in that of an expert witness.

Should We Fire Jane?

getting-firedAs a CFE your client’s employees are fifteen times more likely to steal from them than their customers. A classic rule of thumb for employers to use when considering employee dishonesty is: 10% of employees will steal no matter what is done; 10% of employees will never steal, no matter what the circumstances; and the remaining 80% may steal if you let them. The goal of loss prevention programs is, thus, to keep this 80% group from stealing. A strong deterrent for dishonest employees is knowing exactly what the ramifications of their actions will be. Employees must know that if any employee, at any level, steals or violates company policy, they will receive a fair hearing, swift, consistent, and serious sanctions will be imposed; and termination from employment, criminal prosecution and civil action may result.

So, it appears from your examination that Jane has embezzled what appears to be a lot of money over the past two years and she hasn’t cooperated with the investigation. Now your fraud report comprehensively lays out all the facts of the case and your client asks you flat out, “Should we fire Jane?”

Regardless of whether or not your client decides to seek criminal or civil recovery of fraud losses against an employee, your client needs to consider the future of the employee at their company. When confronted with a possible wrongdoer or with an employee like Jane who refuses to cooperate in the investigation of a suspected fraud, most employers immediately want to fire the employee. Whether the employee can or should be discharged depends on the facts of the case and the law in the employer’s state. There is usually a way to discharge the employee, but such cases need to be handled carefully so that the client doesn’t inadvertently open themselves to liability.

In some U.S. states, absent an employment contract, employment is considered “at will.” This means that the employer or the employee can sever their relationship at any time for virtually any reason. The only exception is that the employee cannot be discharged for a discriminatory reason based on such things as race, sex, disability, or national origin. In other states, the employer may be prohibited from terminating the employee unless the termination is for “just cause.” Before discharging any employee, it’s best to document in the employee’s file that the employer has ”just cause” to terminate employment, whether or not the client operates in an “at will” state.

Although there is no exact definition of “just cause,” there are several questions that the client company should ask before terminating Jane:

— Did Jane know that the conduct would be subject to discipline?

— Was the rule the employee violated reasonably relate to the safe, efficient, or orderly, operation of the business?

— Did the company investigate, formally or otherwise, to discover whether the employee violated the rule?

— Did the company conduct a fair and objective investigation?

— Did the company obtain significant evidence of a violation?

— Was the decision nondiscriminatory?

— Was the discipline related to the seriousness of the offense and the prior record of the employee?

As a CFE, your final report provides invaluable insight in formulating and obtaining documented answers to a majority of these questions.  If, based on the facts, the client company feels that discharge of the employee is likely, it should make sure that the employee’s actions and the company’s actions are well-documented and placed in the employee’s personnel file.

Make your client aware that issues of employee termination are complex and that in many cases it’s prudent to consult corporate counsel before acting. At least one state has recognized the right of an employee to sue for the employer’s failure to properly investigate charges against the employee before discharging him or her. Most of the courts that have addressed this issue have refused to recognize the claim however. Many states now recognize an implied contract between employers and employees arising out of employee handbooks. Handbook provisions might limit the right to discharge for ”just cause,” and the issue might be whether the employer has enough evidence of wrongdoing to constitute “just cause.” A few states recognize a duty on the part of the employer to deal with its employees fairly and in good faith. Documentation from the CFE’s report that the employer had good cause to terminate the employee should defeat this claim.

Other states recognize a public policy exception to “at will” employment. The employee must prove that her conduct is favored by a relevant public policy and that the employer retaliated against her for engaging in this “protected” activity. Again, the company will need to show that it had good cause to fire the employee and that it was not retaliating against the employee because of the protected conduct. For example, if an employee is fired because she supported a particular political candidate in the last election, a court or jury might find that his termination is in violation of the general public policy allowing people to vote for whomever they please. However, if the employee was conducting fund-raising activities on company time, the company would likely have good cause to terminate the employee and such termination would not be in retaliation of the employee’s support of a particular candidate.

The CFE can be of great assistance in marshaling the facts related to all the aspects of an employee discharge for cause.  Just bear in mind that these issues are often more complex than they seem and so always recommend that clients proceed with caution.

Making It Right

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Congratulations!  You and your investigative team did all the hard work over many months and your client company has obtained a conviction of the bad guy.  What happens next?  The restitution phase of your examination, of course!  Client’s counsel has probably already told you (if you didn’t know it before) that the primary goal of a criminal statute is punishment of the convicted defendant, and for the most part criminal procedure does not concern itself with compensation or reparation of your client, the defendant’s victim. However, there are some opportunities to pursue recovery of losses caused by criminal conduct after the defendant’s conviction of which you should be aware.  So, according to the ACFE, what are some of the main issues involved with restitution?

Where the court suspends part or all of the defendant’s jail time and substitutes instead a term of probation, the court has the authority – either by statute or by its inherent powers – to specify the conditions of that probation, including an order to make restitution to the victim or otherwise to cooperate in the victim’s efforts to recover money or property. Restitution as a condition of probation can be ordered against both individual and corporate defendants, and may include a provision for installment payments over time to the victim. Usually the court will take the defendant’s ability to pay into account in ordering restitution, so that the defendant has a reasonable chance of meeting the restitution condition.  These and all terms of probation are supervised by the defendant’s probation officer who reports any failure of the defendant to obey or comply with probation conditions to the court. Restitution and other probationary terms are enforced by the threat of withdrawing probation and returning the defendant to jail to serve out his sentence if he fails to comply with one or more conditions of probation.

The court-designated probation officer usually makes sentencing recommendations – including any special probationary terms – to the court, so you should present any request to include a term of restitution to the probation officer as early in the pre-sentence investigation/evaluation process as possible. A request from the prosecuting attorney to include restitution as a term of probation also carries weight with the probation officer and with the court, so try to cultivate the prosecutor and familiarize her with your claim and supporting evidence. Cooperation with the prosecutor and police during the criminal prosecution can pay dividends in their willingness after conviction to persuade the court to impose a term of probation with an order of restitution.

Federal law (18 USC §§3663A and 3664) and an increasing number of state statutes direct or permit judges to order convicted defendants to make restitution to victims of their crimes as part of their punishment after conviction. These restitution orders are in addition to any other penalties provided by law for the defendant’s crimes. Unlike Victim’s Compensation Funds, these statutes apply to all crimes, including purely economic crimes. They also apply to defendants who do not receive probation as part of their sentence. Typically, statutory criminal restitution orders direct the return of the victim’s property, or its monetary equivalent if the property cannot be returned. Value may be calculated as of the date of loss or the date of sentencing, whichever is greater, according to some statutes. They also may direct the return of the fruits of the crime or the victim’s actual out-of-pocket expense caused by the crime.

A criminal restitution order may not apply, or be available, for a loss for which the victim has received, or will receive, compensation from another source, e.g. insurance (although the insurer may become subrogated to the victim’s rights and a court may enter the restitution order in favor of the insurer or other representative of the victim). Some statutes set a limit to the amount of restitution that can be ordered against a defendant who did not receive probation (although the limit usually does not apply to an order to return the victim’s property or its equivalent value) and/or direct the judge to take the defendant’s ability to pay into account. The federal statute and other state statutes direct that full restitution be ordered, although the court may take the defendant’s ability to pay into consideration in creating a payment schedule.

Unlike restitution that is ordered as a condition of conditional release (probation), a criminal restitution order can be enforced against the defendant even after his discharge from probation or his release from prison. The federal statute (and some state statutes) provide that a criminal restitution order may be enforced as a civil judgment by the victim against the defendant. Restitution orders also typically survive the death of the victim and may be enforced by his heirs or representatives. Criminal restitution orders are cumulative remedies and do not preclude the victim’s separate civil lawsuit against the defendant for the same conduct for which he was criminally convicted. However, any property or money received by the victim under a criminal restitution order will be credited against any civil judgment or restitution order.

The federal courts, and an increasing number of state courts, use legislatively mandated sentencing guidelines for convicted defendants. Besides the crime itself, and attendant facts and circumstances, these guidelines consider other factors that would allow a court to depart from the guidelines to enhance or reduce a sentence. One such factor is the defendant’s voluntary restitution before trial of the fruits of the crime or other compensation of the victim(s). This is not so much a remedy for the victim as encouragement for the wrongdoer to voluntarily make restitution before trial. Keep this fact in mind when negotiating with a criminal defendant for his cooperation during your fraud recovery effort.

Finally, be aware that many states maintain funds for the compensation of crime victims. These usually are funded, in part, by surcharges or fines assessed against the criminally convicted defendants. However, by the statutory terms and definitions, these funds typically are available only for crime victims who suffer physical injury or death from the defendant’s crime. However, it never hurts to look up the law in the relevant jurisdiction to see if reimbursement in whole or part for financial loss from fraudulent criminal conduct is available.

Lunch & a Common Interest

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My wife and I were just finishing up lunch at Maggiano’s here in Richmond last week when an old consulting colleague of mine came up to our table.  Chatting as he accompanied us out of the restaurant and into the parking lot, he told me that he’s currently working as an investigative team member for a local forensic accounting firm on a case of suspected embezzlement.   The client’s management and audit committee are hyper sensitive to employee privacy rights, having experienced a prior grievance lawsuit over alleged wrongful termination and defamation, and my friend had some questions about the common interest privilege and how best to proceed with the investigation in such an environment.

The ACFE tells us that there are a number of important precautions any investigator can take to avoid liability when conducting sensitive investigations.  The right to investigate for fraud is implicit in U.S accounting and legal systems. No special authority is required, although some states regulate the activities of private investigators and others. Generally, an employer, fraud examiner, forensic accountant or other investigator may lawfully interview witnesses, collect evidence where lawfully available, collect and review documents, and examine public records, without fear of liability, if the investigator acts prudently and in good faith. It’s also important that any investigation be based on sufficient “predication.” Predication means that the individual has a sufficient basis and legitimate reason to take each step in the investigation. Anyone who acts irresponsibly, without predication, or in violation of the rights of the subject, can be liable for a number of different civil actions.

Defamation is an unprivileged publication of a falsehood about a person that tends to harm the reputation of that person. The law of defamation actually consists of two torts: libel and slander. Libel is basically defamation that appears in written form, while slander involves defamatory remarks that are only spoken. Aside from the method of publication the elements of these two causes of action are essentially the same. In general, the elements of a defamation claim are:

— A false and defamatory statement is made about the plaintiff;
— This statement is communicated (“published”) to a third party; and
— The plaintiff suffers harm to her reputation or good name as a result.

In any internal fraud-related review, it’s likely that there will be unflattering allegations made against certain persons at some point in the investigation. It’s therefore important that investigative team members understand exactly what constitutes defamation so that they can avoid this potential liability. Statements of pure opinion are not defamatory because, according to the first element of the cause of action, a statement must be false in order to support a defamation suit. An opinion cannot really be proved true or false. Therefore, only statements of fact can give rise to a defamation claim. This does not mean that an investigator can shield herself from liability by phrasing all accusations as statements of opinion – “in my opinion, Allen cooked the books. ” Although the preceding statement purports to be an opinion, it implies a fact, that Allen manipulated the books. Therefore, this statement could be found to be defamatory. On the other hand, a statement that a particular employee is “difficult” or that she “seemed uncomfortable” are more likely to be found to be statements of opinion, and thus not actionable.

The second element of the cause of action requires that the statement be published, i.e., communicated to a third person or persons. The crux of defamation law is that the plaintiff’s reputation is harmed by a false statement. If no one else hears the statement, the plaintiff’s reputation cannot be harmed. This is why publication is a required element of the cause of action. Although the term “publication” is used, this does not mean that the statement has to be published in the traditional sense; it’s enough that the statement is communicated to a third person, either in writing (libel) or through spoken word (slander). In some cases, even hand signals have been found to amount to a publication. If a statement is never communicated to a third person, it cannot be defamatory. Thus, if during an interview an investigator accuses the subject of having stolen money, this will not amount to defamation as long as no one else hears the comment. On the other hand, if during an interview of Smith, the interviewer says, “It appears Jones took the money,” this could amount to defamation, since the accusation against Jones has now been published to Smith.

Aside from truth, the most important defense to a defamation action for my investigating friend is the common interest privilege. If a person makes a statement: (1) in good faith; (2) regarding a subject in which the person making the statement has a legitimate interest or duty; (3) to another person with a corresponding interest or duty, then that statement is exempt from a defamation claim. The statement will be privileged even if it is false, even if it injures the reputation of the employee, and even if it is published to a third person.

The common interest privilege extends to communications about internal investigations among persons with a legitimate interest in the investigation. Interested persons include the investigative team, members of the company’s management who requested the investigation, those who have an interest in the results of the investigation, and those who have authority to implement the recommendations or otherwise make decisions based on the results of the investigation. Some courts also have concluded that a government agency that receives a required or mandated report from the company has a common interest in that report. The law recognizes that these persons have a legitimate need to communicate about the investigation, and that the nature of such an investigation necessarily involves the discussion of the actual or suspected wrongdoing of employees. If every allegation were subject to a defamation suit, this would have a chilling effect on the ability of companies to investigate internal misconduct. Therefore, statements made in good faith among these interested persons are privileged from defamation suits.

But please bear in mind that the common interest privilege is qualified, which means that it can be lost. In order to be privileged, the communication must have been made in good faith. If the person who made the communication knew that it was false or had a reckless disregard for whether it was true or not, then this statement is not privileged, and the speaker can be successfully sued for defamation. Furthermore, the communication is only privileged among those with a “need to know.” If a statement is disseminated outside the group of interested persons, it loses its privilege. Therefore, it’s extremely important to limit the distribution of any internal report to those discussed in the preceding paragraph.

In summary, the common interest privilege is a qualified privilege, meaning that it can be lost if the defendant acts with malice in publicizing falsehoods about the plaintiff. Contrast the common interest privilege with statements made in connection with judicial proceedings; judicial proceeding statements are absolutely privileged. This means that they cannot be the subject of a defamation suit, regardless of the speaker’s motives. The judicial privilege attaches to all statements made by judges, jurors, attorneys, witnesses and other parties to a judicial proceeding. It applies to all aspects of the proceedings, including pretrial depositions and hearings, as well as to all papers or pleadings filed in the case. The idea is that we do not want to hinder the courts’ ability to get at the truth, so all those who testify in a judicial proceeding are absolutely privileged from defamation claims. But keep in mind that intentional falsehoods can still be punished in these settings under perjury laws.