Companies faced with allegations of workplace misconduct have choices when it comes to investigating those allegations. Some firms opt to use internal legal department personnel in coordination with the Human Resources function; others retain outside counsel to lead the investigative efforts.
Using in-house personnel can create a complicated web of potential issues, not the least of which are questions about the privilege and the attorney work product doctrines. But, those issues aside, using outside counsel has another potentially significant benefit for companies: employees tend to feel more confident in the investigator’s impartiality and may be more forthcoming in interviews than they would when internal Legal Department staff is used.
The goal of any investigation should be to get to the bottom of the matter, to fully understand the facts and circumstances in order to make a determination on the basis of complete information. If those determinations are later challenged in court, companies will need to be able to document the reasonableness and impartiality of their investigations.
This is not to say that the results gleaned from an investigation using an external investigator are somehow superior, or that in-house counsel cannot be neutral and thorough. Of course, in-house counsel is every bit as capable as outside counsel of being fair and impartial. And, when hiring external counsel, employees questioned or otherwise involved in the investigation need to understand that the outside attorney/firm represents the employer company, not the individual employees.
Still, right or wrong, there is an automatic perception that bringing in outside investigators means the investigation will somehow be more complete, and more fair. The practical result of this is that employees may have more confidence in the process itself, as well as in the outside investigator, making them more willing to open up.
There is also a chance that the person that would normally conduct the investigation could be called as a witness in the case. Obviously, this would create a clear conflict of interest and make it very difficult for the investigation to be viewed as impartial.
Maintaining Independence is Important for Outside Counsel
The American Bar Association’s Corporate Governance Practice No. 9 states that “[e]ngagements of counsel by the board of directors, or by a committee of the board, for special investigations or independent advice should be structured to assure independence and direct reporting to the board of directors or the committee.”
When considering using outside counsel to conduct workplace investigations, companies should keep this guidance in mind, remembering that the external investigators should be independent with no, or minimal, ties to the company, its board of directors, its officers and of course to the employees being investigated or interviewed in the process.
And, to maintain independence during the investigation itself, reports as to the progress and substance of interviews should only be shared with those who truly have a need to know – the board or committee who brought in outside counsel. Outside counsel should keep contact with company management and other personnel to a minimum.
When making determinations about how best to conduct workplace investigations, companies need to consider the pros and cons of using internal personnel vs. outsourcing investigative efforts. Depending on the facts and circumstances, one of the considerations may be the fact that employees will feel more confident in the impartiality of the investigation if outside counsel is retained.