Mcle Self-study: Attorney Workplace Investigations: Neither Impartial Nor Independent

• Citation: Vol. 37 No. 2
• Publication year: 2023
• Author: Andrew H. Friedman

MCLE SELF-STUDY: ATTORNEY WORKPLACE INVESTIGATIONS: NEITHER IMPARTIAL NOR INDEPENDENT

AUTHORS^*

Andrew H. Friedman

Courtney Abrams

A counterpoint to our September 2022 article on workplace investigations by Lindsay Harris and Amy Oppenheimer

Attorneys Conducting Impartial Workplace Investigations: Reclaiming the Independent Lawyer Role,¹ written by our friends and colleagues Lindsay Harris and Amy Oppenheimer,² certainly has a ring of "truthiness."³ But, desiring something to be true does not make it so. Indeed, while Harris and Oppenheimer argue that attorney-client-privileged investigations can be impartial and that attorney workplace investigators can be independent from their clients (the defendant employers who retain them), we posit the exact opposite.

While acknowledging that "impartiality 'resists easy definition,'"⁴ Harris and Oppenheimer proceed to restrict their view of that term to mean simply that the investigator is "free from bias."⁵ Contrary to the narrow manner in which Harris and Oppenheimer view the term "impartial investigation," however, a truly "impartial"

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investigation would be one in which the investigator is not only free from bias but also treats all parties equally and is not influenced or controlled in any way by the complainant's employer.⁶ Indeed, applying the Harris/Oppenheimer view of "impartial" to the world of baseball, they would conclude that a baseball game was fair even if the umpire hired by the Dodgers to officiate a Dodgers/Yankees game agreed to abide by the Dodgers' rules of the game, such that the umpire could only call strikes when the Dodgers were pitching and could only call balls when the Dodgers were batting, so long as the umpire was "free from bias."

For at least three reasons, we posit that attorney-client privileged workplace investigations are not impartial and that investigators conducting such investigations are not independent.

First, when an attorney conducts an attorney-client privileged investigation, the attorney is constrained not only by the attorney-client privilege but also other ethical considerations. As explained in detail below, attorney-client-privileged investigations are inherently structured to benefit the investigators' client employers from start to finish.

Second, the well documented "repeat player bias" prevents attorney investigators from being impartial. Indeed, because investigators know that "their clients may rely on the investigation to defend against claims made in subsequent litigation,"⁷ the investigators have a strong financial incentive to structure the investigation and its outcome so as to bolster their clients' defenses (i.e., repeat business from not only their employer clients but also their clients' employment law defense firms).⁸ Additionally, given that many investigators require, as part of their standard retainers/engagement agreements, that their clients indemnify and defend them from claims that may arise from the investigation,⁹ these investigators are even further financially dependent upon their clients.

Third, in the real world, attorney workplace investigators are routinely complicit in and/or take no steps to stop defendant employers from weaponizing attorney-client-privileged investigations against the complainant. Indeed, most of the authorities cited by Harris and Oppenheimer specifically recognize that attorney-client-privileged investigations must be structured in ways designed to advantage the employer. For example, one of these authorities states that the "existence or threatened existence of" civil litigation "necessarily affects how the company and outside counsel conduct and document" the investigation. The authority also cautions that the investigator should provide interim oral (not written) reports to the employer, and that "[c]areful consideration should be given to the extent to which written reports should be rendered, if at all, during or at the conclusion of the investigation."¹⁰ It further recommends that the corporate defendant work with its attorney investigator to determine whether or not to waive the attorney-client privilege.¹¹ Another article cited by Harris and Oppenheimer "outlines eight steps that can . . . limit legal exposure" for employers.¹² It also recommends that employers "make decisions about the investigation . . . including the type of investigator needed, the appropriate scope of the investigation, and the type of investigation report preferred" based on "the privilege standards as to investigative materials in their applicable jurisdictions."¹³ Yet another article cited by Harris and Oppenheimer specifically cautions workplace investigators to structure their engagements in ways to ensure that the investigation is covered by the attorney-client privilege.¹⁴ Even the Association of Workplace Investigator's Guiding Principles For Conducting Workplace Investigations¹⁵ explicitly provides that workplace investigators should defer to their client's wishes regarding not just the scope of the investigation, but also the form of the investigatory report (e.g., oral versus written). The Guiding Principles further recommends that workplace investigators "discuss[ ] the merits of potential report formats with the employer."¹⁶

Finally, as discussed in more detail below, if attorneys conducting workplace investigations really desire to reclaim the "independent lawyer" role, they need to take to heart Supreme Court Justice Louis D. Brandeis' famous saying, "sunlight is said to be the best of disinfectants."¹⁷

ATTORNEY-CLIENT PRIVILEGED INVESTIGATIONS ARE INHERENTLY STRUCTURED TO BENEFIT EMPLOYERS AND CANNOT THEREFORE BE IMPARTIAL

Attorneys conducting attorney-client-privileged workplace investigations can never be independent. The attorney-client-privileged nature of the investigation is fundamentally structured such that the investigator cannot treat the employee and the employer equally with respect to either the investigation or the investigatory report.¹⁸

AN ATTORNEY-CLIENT-PRIVILEGED INVESTIGATION ALLOWS THE EMPLOYER TO USE THE INVESTIGATION AS A SWORD WHEN THE INVESTIGATION FAVORS IT, AND AS A SHIELD WHEN IT DOES NOT

In Wellpoint Health Networks, Inc. v. Superior Court,¹⁹ the plaintiff employee sought discovery of the workplace investigator's investigation, initially arguing that, because "an attorney retained to investigate employee claims of discrimination is not acting as an attorney but as a fact finder, the attorney-client privilege and work product doctrine therefore do not have any applicability."²⁰ The court rejected this argument, holding that the attorney-client privilege and work product doctrine do, in fact, apply to attorney workplace investigations. The

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court then explained that the employer was free to waive the attorney-client privilege if it wanted to attempt to "prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation."²¹If the investigator were to inform the employer that the investigation favors it, the employer would then instruct the investigator to thoroughly document the investigation in a comprehensive written report, which the employer could then use to defend against the employee's claims.

Even in those situations where the employer elected to rely on the investigation, it could still argue that some aspects of the investigation should remain privileged (i.e., the communications between the employer and/or its employment defense counsel and the investigator about the investigation).²² So, for example, the employer could ask its outside defense counsel to communicate with the investigator in an effort to influence the investigator against the complainant or toward an outcome optimal to the employer. Under this arrangement, the employer could argue that it should be able to rely on the investigation. At the same time, the employer could use the attorney-client privilege to preclude the complainant from seeing these incriminating communications.²³ Similarly, some courts have actually allowed defendant employers to rely on the adequacy of an investigation, even while producing only a redacted version of the investigation report.²⁴

Should an investigation corroborate the plaintiff employee's claims, the employer is free to claim attorney-client privilege and completely shield the investigation from the complainant/jury²⁵—an information deficit that necessarily prejudices the complainant.

ATTORNEY INVESTIGATORS CONDUCTING PRIVILEGED INVESTIGATIONS ARE ETHICALLY REQUIRED TO ALERT THEIR EMPLOYER CLIENTS AS TO ALL INFORMATION UNCOVERED DURING THE INVESTIGATION—CONVERSELY, INVESTIGATORS ARE ETHICALLY PROHIBITED FROM ALERTING THE COMPLAINANT WITH INFORMATION THAT WOULD HELP THE COMPLAINANT

As Ms. Harris has correctly recognized in a prior law review article on this subject, "[a]n attorney conducting a facts-only investigation may also be required to alert the client to reasonably foreseeable legal issues that become apparent during the investigation, even if these issues fall outside the scope of the agreed upon representation."²⁶This ethical obligation means that so-called "impartial" attorney investigators are required to provide employers with information unrelated to the investigation, which would allow employers to defend against complainants' claims. This necessarily favors the employer.

For example, an employer retains an attorney investigator to investigate a female Muslim employee's complaint that she was treated poorly and was then fired because of her gender. During the course of the investigation, the investigator uncovers facts demonstrating that, while there was no gender discrimination or harassment: (a) the employee's supervisor authored communications demonstrating that the supervisor harbored animus toward the employee's Muslim religion, and took adverse employment actions against the employee specifically because of that animus; and (b) unbeknownst to the employer, the...