Independent Attorney Workplace Investigations
When an employer becomes aware of employee claims of discrimination or harassment, there is an obligation to investigate those claims. Even when a problem appears limited in scope at first glance, a business that fails to take these types of claims seriously can find itself the subject of unwanted litigation for failing to act and to investigate. In many, and perhaps most situations, the safest course of action for an employer is to hire a neutral investigator to come in, interview employees, and conduct a thorough investigation of the claims. Oftentimes, that investigator is also a licensed attorney. There are many advantages to having an attorney investigate claims that have the potential to open an employer to legal liability. However, when deciding to use a licensed attorney to conduct a sensitive workplace investigation, it is important for the employer to understand that common attorney privileges do not always apply in the context of workplace investigations. Here are three issues affecting the use of attorneys for workplace investigations that employers should be aware of.
Use of an attorney as a workplace investigator will not always allow the employer to invoke attorney-client confidentiality.
Attorneys are often chosen as either internal (in-house) or independent investigators because the employer wants to protect the investigation results through attorney-client privilege. However, attorney-investigators and their clients must be aware that the attorney-client privilege may not attach if the attorney's report contains primarily business-related advice, rather than legal advice. Generally, courts tend to hold that attorney-client privilege extends only to legal advice, and not to business or policy advice. But see United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) (holding that attorney-client privilege does apply to business-related advice).
In some instances, the attorney-client privilege will apply. For example, various courts have held that a sexual harassment investigation conducted by an attorney is protected by the attorney-client privilege. See, e.g., Brownell v. Roadway Package System, Inc., 185 F.R.D. 19 (N.D.N.Y. 1999); Peterson v. Wallace Computer Servs., Inc., 984 F. Supp. 821 (D.Vt. 1997). Whether an investigation conducted by an attorney meets the requirements for attorney-client privilege depends upon the legal nature of the advice and how it is used.
Use of an attorney as a workplace investigator does not guaranty that the attorney’s investigation notes are protected by the work-product privilege.
Documents that an attorney produces as work-product during an investigation may be discoverable if their contents are used as the basis of the employer’s defense of adequate investigation. See Payton v. New Jersey Turnpike Auth., 691 A.2d 321, 336 (N.J. 1997) (while employers may escape liability if they take sufficient remedial actions to investigate harassment allegations, they may be required to produce their investigative results). This makes sense, because it would be difficult for an employer to prove that the attorney they hired to investigate did their job thoroughly if the notes showing the investigation were not provided as proof. Both the employer and the attorney-investigator should keep in mind that any notes prepared by the attorney during the course of the investigation could be shown in court one day.
Choosing between in-house counsel, outside litigation counsel, or a neutral attorney-investigator.
It is commonly perceived that outside attorneys, being more removed from the day-to-day operations of the business, are more objective investigators. The law does not impose any different standards on them than it would upon an attorney who was also an employee of the business. That said, there are good reasons to choose a neutral outside attorney to conduct an investigation, instead of one who is an employee or who regularly represents the business in litigation matters. There are often concerns that an outside attorney who regularly represents a business will be conflicted out of representing their client in litigation related to the investigation, and could even be named as a co-defendant by an ex-employee. Therefore, businesses hiring an independent attorney to conduct a workplace investigation should strongly consider an attorney that does not regularly represent it in other matters. This allows the business to benefit from the specialized training of an attorney while not compromising employee trust, the working relationships between in-house counsel and other employees, or any future representation in litigation.
Cite this article: Lynch, N. (2017). Independent Attorney Workplace Investigations. Available: http://lynchsc.com/insights/independent-attorney-workplace-investigations/