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ATTORNEY WORKPLACE INVESTIGATIONS: NEITHER IMPARTIAL NOR INDEPENDENT

— A counterpoint to the September 2022 California Labor & Employment Law Review article on workplace investigations by Lindsay H arris and Amy Oppenheimer

by Andrew H. Friedman & Courtney Abrams

Attorneys Conducting Impartial Workplace Investigations: Reclaiming the Independent Lawyer Role, written by our friends and colleagues Lindsay Harris and Amy Oppenheimer, certainly has a ring of “truthiness.” 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,’” Harris and Oppenheimer proceed to restrict their view of that term to mean simply that the investigator is “free from bias.” Contrary to the narrow manner in which Harris and Oppenheimer view the term “impartial investigation,” however, a truly “impartial” 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. 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,” 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). 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, 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.” It further recommends that the corporate defendant work with its attorney investigator to determine whether or not to waive the attorney-client privilege. Another article cited by Harris and Oppenheimer “outlines eight steps that can . . . limit legal exposure” for employers. 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.” 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. Even the Association of Workplace Investigator’s Guiding Principles For Conducting Workplace Investigations 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.”

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.”

• attorney-client privileged investigations are inherently structured to benefit employers and cannot therefore be impartial
• 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
• 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
• the “repeat player” bias prevents attorney-client-privileged investigations from being impartial
• in the real world, employers weaponize attorney-client privileged investigations
• employers use attorney-client privileged investigations to pre-condition the investigator in their favor
• employers use attorney-client privileged investigations to structure, shape, and control the investigation
• employers use attorney-client privileged investigations to “dig up dirt” about the complainant
• employers use attorney-client privileged investigations to settle meritorious case for far less than they are worth
• employers sometimes use attorneys not only as outside workplace investigators, but also simultaneously (or subsequently) as defense counsel
• workplace investigators are not impartial, because they often do not allow the electronic recording of witness interviews and because their clients do not want an objective account of the investigation preserved
• if attorney investigators wish to “reclaim the independent lawyer role,” they need to strictly adhere to a code of conduct requiring them to be truly impartial

Click to read full article: Workplace Investigations Neither Impartial Nor Independent