Archives for January 2014

Picking the Right Personnel Investigator: A Cautionary Tale

ABA Article re Attorney Investigator

The attached ABA article, entitled “$300,000 Sanctions Award in Title VII Case Reignites Rule 3.7 Discussion,” should serve as a cautionary tale to companies that use legal counsel (either in-house or outside) to investigate personnel complaints.  The featured case resulted in a mistrial and a $300,000 sanctions award in favor of the EEOC and jointly against the employer/law firm because the employer failed to produce the notes of the attorney-investigator who investigated the employee’s harassment, discrimination and retaliation complaint.   The investigator was an attorney with the law firm that represented the employer in the lawsuit filed by the employee who made the complaint.  Because the employer relied on the investigation and its response as a defense to the discrimination claims, the court found the investigator was a fact witness and the investigator’s notes were discoverable.  As a result, the law firm was ethically conflicted from continuing to represent the employer in the lawsuit.

Bottom line – think carefully when selecting an investigator to investigate personnel complaints.  A court may very well conclude the investigator is a fact witness and that his/her investigation notes and  communications will be discoverable.  Given this prospect, you should avoid picking an attorney-investigator if you anticipate engaging that same attorney (or the attorney’s law firm) to represent the company in a legal proceeding related to the investigated complaint.

I regularly serve as outside counsel or independent investigator in connection with a wide variety of personnel complaints and would be happy to serve in either role for your organization or clients.