INVESTIGATIONS AND THE APPEARANCE OF NEUTRALITY
Recent experiences investigating and conversations with other investigators at the California Association of Workplace Investigators (CAOWI) have taught me one thing: an investigation agreement should always be between the investigator and the retaining entity, not the entity’s law firm.
Why? Thing about it logically. An investigator should be conducting an inquiry into the factual circumstances surrounding an incident or circumstances, not offering legal advice about what occurred. While it’s important to hire an attorney (or private investigator) to do the investigation in order to comply with Business and Professions Code §7520 et seq, an attorney is not engaging in traditional legal advice. In fact, it’s critical that whomever is hired to do an investigation is a separate entity apart from counsel who’s advising on how to handle the consequences of that investigation. Otherwise there’s potential both for an actual and perceived bias.
Why? Because an attorney who is working in the capacity of maintaining your legal health may have a hard time telling you that your current practices are legally hazardous. Also, she may not want to risk alienating the client by finding that the complaining witness’s accusations are valid, particularly if they are directed at employer practices.
I do think there are advantages to hiring an attorney with experience in employment law to do an investigation. For example, the attorney will know what’s important to ascertain in case the matter ever goes to court. She is also more likely to draw on her work as an attorney, something that supports attorney-client privilege. However, she also must surrender her role of employment counsel while she investigates in order to maintain neutrality. Therefore, having the investigator contract with a law firm just muddies up the waters.
In addition, an investigator should always be focusing on the entity that is her ultimate client and what it needs. By having a third-party involved, an investigator’s role is confused. Who is the investigator answering to and for what purpose? Contrary to some schools of thought, having an investigator contract with a law firm will not support privilege. On the contrary, the third-party is just one more (ultimate) non-client entity receiving the results of the investigation. An attorney can instead preserve privilege by carefully structuring her retention letter and her duties to reflect that she is using her skills as an attorney to conduct an impartial, thorough, and prompt investigation. She can also preserve privilege by giving her results to a single, designated individual at the hiring entity, which should be the same entity that will take action based on her findings.
For more information on this topic I would be happy to share the PowerPoint I presented at the California Association of Workplace Investigators 2010 Conference entitled “An Ethical Checklist for Investigators.” Simply email me at diana@dianamaierlaw.com
Tags: attorney investigator, attorney-client privilege, B & P Code 7520, CAOWI, employment attorney, investigations, lawsuit, neutrality, prevention, workplace complaint
Investigations, employer compliance, preventative advice, workplace investigations | Diana Maier | 
March 10, 2011 1:24 pm
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