When faced with allegations of discrimination, harassment, or other policy or legal violations, organizations must act quickly. They must determine whether the allegations can be substantiated and then assess their legal and business risks before taking action.
These are often times of stress, fear, and uncertainty for everyone involved. The complainant or whistleblower feels vulnerable; the accused is angry and afraid; and leadership feels pressure to act decisively despite having limited information and despite knowing that their actions will be consequential for the reputations, careers, and relationships of themselves and others.
Although internal investigations can be conducted by an organization’s employees, there are compelling reasons to hiring outside counsel:
- Perception of Independence and Good Faith
By hiring outside counsel, an organization communicates to its employees and to potential third parties (e.g. courts, government regulators, juries, the media) that the organization has taken the allegations seriously and has made good-faith efforts to ascertain the truth and act in a legally compliant manner. Investigations conducted by an organization’s own employees may be viewed with skepticism, based on the assumption that the organization is only going through the motions or that the investigating employees are influenced by organizational politics or personal loyalties.
- Attorney-Client Privilege
When an investigation is conducted by outside counsel, for the purpose of providing legal advice to the organization, the investigative communications are generally protected by the attorney-client privilege. This includes communications between counsel and the organizational representatives commissioning the investigation, communications during witness interviews, and counsel’s advice to the organization at the conclusion of the investigation.
Investigations conducted by in-house counsel may also be protected by the attorney-client privilege; however, courts are often more skeptical as to whether the in-house counsel was acting in a legal or business capacity during the relevant times. It is easier to draw a clear line between privileged and non-privileged communications when outside counsel is retained.
- Positioning for Litigation
A prompt internal investigation followed by appropriate action may serve as an affirmative defense to workplace harassment claims. Counsel experienced in litigation can design an investigation that satisfies the requirements for the affirmative defense and document the investigation with an eye toward potential voluntary disclosure of the investigation materials in litigation. (The decision of whether to waive the attorney-client privilege and work product protections in order to rely on the investigation as an affirmative defense would be made much later based on the advice of litigation counsel.)
Even when outside counsel is retained, internal investigations are fraught with many complexities and pitfalls. Common pitfalls that counsel can unwittingly lead clients into include:
- Heightening Fear and Spreading Rumors.
When an investigation is not conducted with due care, it can have unintended negative results in the workplace. There are several common missteps by attorneys that tend to induce fear and feed the rumor mill, including: interviewing more employees than necessary, sharing too much information with interviewees, conducting interviews at times and places that are visible to other employees, failing to instruct interviewees about confidentiality, and failing to advise the organization on how to appropriately dispel rumors.
- Alienating Complainants.
An investigator lacking sensitivity may cause complainants to feel their concerns are dismissed, that they themselves are being accused, or that the organization is looking for a reason to terminate their employment. When complainants reach these conclusions, harm to the organization invariably results. At a minimum, the complainant’s attitude and job performance will decline, forcing the organization to decide whether to tolerate the behavior or to set itself up for a retaliation complaint by resorting to discipline or termination. Alternatively, the employee may voluntarily leave the organization after the investigation, resulting in loss of their contributions and conveying to other employees that it is not safe to come forward with complaints.
Most damagingly, complainants who feel dismissed or attacked may re-assert their complaints to federal or state agencies or courts, resulting in costly government investigations and/or litigation. For these reasons, it is crucial that complainants be treated with respect and sensitivity during the investigation.
- Failing to Protect Privileged Communications and Work Product.
If outside counsel lacks sufficient experience in handling internal investigations, they may fail to secure protections under the attorney-client privilege and work product doctrine. Inadequate documentation regarding the engagement and its purpose, disclosures to third parties, and even failure to properly describe and label documents can jeopardize these protections. If the attorney-client privilege and/or the work product doctrine are found not to apply, then investigation materials may be admissible against the organization in subsequent government investigations or litigation.
At Accord Solutions, we specialize in conducting internal investigations with skill and care. We tailor internal investigations to the needs of the situation and execute them discreetly and respectfully. Our approach includes building rapport with witnesses, clearly stating our investigative and legal role, setting expectations for witness participation, instructing witnesses regarding confidentiality, and sharing information within the organization on a need-to-know basis.
To the extent possible and appropriate, we also use the witness interviews to allay fears, disabuse employees of false information, and build employee confidence in the good faith of the leaders who have hired us to get to the bottom of the situation and advise the company on the best way forward. We understand that an organization’s underlying need is to address the complaint and get back to business with a functional workforce.
Furthermore, we stay abreast of the nuanced legal developments regarding investigations, including the attorney-client privilege and work product doctrine, as well as the ways in which investigative materials are used in litigation.
If your organization is in need of a privileged internal investigation, request a free consultation here.
The pricing structure for investigations can be found here.