Mcle Self- Study: Attorneys Conducting Impartial Workplace Investigations: Reclaiming the Independent Lawyer Role
| Publication year | 2022 |
| Author | Lindsay Harris |
AUTHORS*
Lindsay Harris
Amy Oppenheimer
Workplace investigations have become a substantial and distinct practice area for California employment law attorneys. Employers are mandated to and risk liability if they fail to conduct impartial investigations of discrimination and harassment.1
As a result, many employment lawyers have fled the grind of litigation to embrace a new role as independent workplace investigators.
Skeptics in the plaintiff's bar and investigation community contend that attorneys cannot be truly impartial, because they conduct independent investigations on behalf of employers in an attorney-client relationship. Critics claim that an attorney cannot conduct an impartial investigation on behalf of a client, because the Rules of Professional Conduct impose a duty of loyalty.2 They also allege that attorneys in fact do not conduct impartial investigations, because the pull of future business from the client undermines their neutrality. Finally, some question whether investigations under the attorney-client privilege is incompatible with impartiality.
We conclude that outside attorney-investigators can and do conduct independent investigations, under the right circumstance and when free from conflicts of interest. The attorney-client privilege does not vitiate lawyer independence. Finally, this new practice area should be embraced as an exercise in independent judgment, which has motivated many to join our profession in the first place.
California laws requires employers to conduct "impartial" or "objective" investigations of workplace discrimination and harassment.3 In-house staff are not always the right choice as investigators, because they often lack authority and the real or perceived impartiality to conduct a credible investigation. This gives rise to the need for external investigators, who are sufficiently "independent" of the organization.4
Although employment laws and guidance refer to "impartial" or "objective" investigations,5 we focus this article on "independent" investigations. These are related but distinct notions, with "independence" as one of several factors affecting impartiality. An "independent" investigation is where the lawyer exercises her independent professional judgment in conducting an investigation, and remains uninfluenced by her relationship with the company or counsel who retain her. In contrast, an "impartial" investigation is potentially a much broader concept, encompassing not only "independence," but also freedom from a wide array of other biases (e.g., unconscious racial bias, confirmation bias, anchoring bias, etc.).6
California workplace investigations conducted by attorneys are usually fact investigations. The attorney investigator does not render traditional legal advice or recommendations, but is engaged strictly to conduct an objective inquiry to produce factual findings for the employer.7 To safeguard the neutrality of the investigation, the advice-giving function is normally performed by the employer's regular counsel.8 Although the retainer agreement limits the attorney-investigator's role to that of conducting an impartial factual investigation, she nonetheless provides a legal service in an attorney-client relationship.9
Critics contend that if the attorney is "representing" the client, she cannot be "impartial," because her professional duty of loyalty precludes it. This criticism is based on a misunderstanding of how "limited scope representation" defines the lawyer's ethical role in workplace investigations.
Critics premise their complaint on a mistaken belief that functioning as an attorney necessarily requires engaging in zealous advocacy on behalf of the client. This is rooted in a larger misconception of lawyering, one which "treats . . . advocacy as the defining metaphor for the profession," and which improperly conflates the various roles attorneys can, should, and do play in the American legal system.10
The ABA Model Rules of Professional Conduct identify the various roles attorneys play for clients apart from advocacy, including advisor, negotiator, and fact-finder.11 Each of these roles has distinct ethical requirements.12 Yet the "adversarial-advocate" role "continues to dominate lawyers' public discourse about ethics." This view is "severely deficient" and does not accurately depict the lawyer's ethical duties in other important roles (i.e., as advisor or evaluator).13
Indeed, the advocacy role pertains only in settings where a judge and an adversary operate as check and balance to the dangers of zealous partisanship. In other settings, however a lawyer may be required to be non-partisan. Retention as an independent investigator is one of those settings.14
Legal developments in California have given attorneys new tools to explicitly delineate their roles. Attorneys are permitted to limit the scope of their services, so long as the scope is reasonable and the services can be performed
[Page 2]
competently.15 This form of legal service is known as "task-based" or "limited- scope" legal services and is an increasingly common way of serving the needs of employers and other clients in California.16
Over the past decade, attorneys engaged in workplace investigations have utilized limited scope engagements to explicitly reclaim an independent and objective lawyer role. They have crafted engagement agreements with their clients that clearly specify their retention as impartial investigators, and that explicitly disclaim any role of zealous advocacy.17Limited scope retention is "an appropriate form of task-based representation to comply with employment laws."18
Thus, the duty of loyalty does not prevent a lawyer from conducting an objective and impartial investigation.19 If the lawyer has been retained for and is capable of performing that function, she satisfies her duty of loyalty by using her expertise to conduct an unbiased investigation.20 Far from precluding impartiality, the Rules of Conduct require it.
Aside from an important recent study in the context of financial fraud investigations conducted by external investigators,21 we are not aware of empirical research on this question. Based on our personal experience, we believe that outside attorney-investigators can and do conduct investigations independent of inappropriate influence by management, under the right circumstances and when free from conflicts of interest. Moreover, scholarship in the field has identified factors conducive to the exercise of lawyer independence as discussed below.
IS THE ATTORNEY-INVESTIGATOR FREE FROM CONFLICTS OF INTEREST?
To conduct an independent investigation, the investigator must be free from conflicts of interest. These include conflicts that may arise from: previous representation of individual personnel (i.e., executives or employees); law partners having been parties to the events under investigation; as well as an investigator seeking unrelated business from a client.22
Conflicts similarly may arise from attempting to play conflicting roles (e.g., acting as investigatory counsel and defense counsel).23 Likewise, a company's regular outside counsel is not positioned to conduct an independent investigation, because: the desire to maintain a future business relationship undermines independence; the investigation could implicate previous advice given; and the wrongdoing to be examined could affect relationships with senior management or executives.24 In addition, the conflicting role of investigator and advisor/litigator implicates ethical rules on the lawyer as witness,25 and creates the potential for complex privilege issues.
DOES THE INVESTIGATOR HAVE THE RIGHT KNOWLEDGE BASE?
The investigator should have adequate training in the substantive law at issue and investigative skills. The right knowledge base also includes the standards by which investigations are judged: structuring an investigation so as to safeguard independence; training in unconscious bias and methods to counter it;26 and an understanding of the investigator's proper ethical role. The grounding in ethics should include a clear understanding of who the client is—the organization (or board or audit committee)—not the individual members of management.27 An investigator who is not solid in the above knowledge base is more susceptible to improper influence from client constituents.28
DOES THE INVESTIGATOR UNDERSTAND HER ROLE AND HAVE THE RIGHT PERSONAL QUALITIES?
The investigator should see herself as an independent professional retained to render her candid and neutral assessment to the client, rather than retained to protect management, or to whitewash organizational wrongdoing.29 The attorney-investigator should be someone who sees independence as "an admirable part of her professional role."30 Other personal qualities include a high degree of integrity and an ability to have an open mind.
IS THE INVESTIGATOR PART OF A COMMUNITY OF PRACTITIONERS THAT SUPPORTS THE ABOVE NORMS AND STANDARDS?
"The first requisite of independence is that the lawyer have some source of norms, rules, or conventions to refer to in resisting client pressures."31 In addition to substantive legal rules, discussed below, "informal norms and conventions are sometimes more powerful than legal ones."32 The creation of the Association of Workplace Investigators (AWI) in 2009 has been a significant development in the field of workplace investigations—one which holds promise to bolster the ability of...
To continue reading
Request your trial