Companies should consult with employment counsel when they are dealing with a serious workplace complaint, such as an allegation of discrimination. There are, however, numerous reasons why your internal HR or employment counsel should not conduct the investigations themselves. Having an individual from the workplace conduct the investigation reduces the candor with which interviewed employees are willing to share information. Having a working relationship with someone who previously interviewed you as part of an investigation also strains the relationship in the future. Additionally, using internal counsel to oversee or conduct investigations typically leaves those investigations without any attorney-client privilege because of the Upjohn principles described in United States ex rel. Barko v. Halliburton Company et al. More specifically, hiring external counsel may take the investigative process out of the “ordinary course of business,” as described in Star-Telegram, Inc. v. Shattman. Lastly, counsel that should be involved in any litigation related to the matter should not be involved in the investigative process, in accordance with the local version of ABA Model Rule 3.7, because the investigator may become a witness.
The Lynch Service Company regularly works with attorneys general, internal counsel, external counsel, employment litigators, employment generalists, and senior human resources staff during workplace investigations. The Lynch Service Company recognizes the importance of understanding local evidentiary rules and company culture in a way that only a company’s advisors can relay. For example, LSC will conduct investigations with or without recordings, observers, or notes in accordance with the preferences of the client’s advisors. Additionally, our investigators also know how to involve the client’s counsel or HR representative for guidance when unexpected matters of particular importance arise throughout an investigation.