More and more, institutions are turning to internal investigations as the response when confronted with allegations of serious wrongdoing. Especially now, in the #MeToo era, the expectations are often quite high for a swift and vigorous management response to allegations of wrongdoing. Unfortunately, investigations cobbled together in haste can risk doing as much harm as good. There are a few basic guidelines that will help start an investigation on the right track, keep it focused yet flexible, maintain confidentiality when that is desired, and increase the likelihood of investigative outcomes that will be satisfactory to all parties as well as other interested constituencies.
Determine and Document the Scope of Investigation
In terms of time, expense, and a successful outcome (here, we define success as an investigation that is accepted as valid by those with an interest in the matter), there is no greater risk than a failure to adequately define the scope of an investigation. Essentially, there is a twin risk when it comes to the investigative scope:
- A lack of clarity about the scope, which can lead to a meandering and unfocused process and outcome, or
- A scope that is too narrow, which can give the appearance of a result-oriented process that is biased towards the institution.
Every investigation should begin with a written investigative plan that clearly defines the scope, the documentary evidence to be gathered, and the witnesses to be interviewed. An investigator’s greatest skill is the ability to listen, learn, and be open-minded about where the evidence is leading, so that throughout the process, the investigative plan can be open to change and updating. This is especially true regarding the scope of the investigation, which must reflect the actual evidence that is being gathered—if the evidence suggests that there are additional questions that must be addressed, then the scope of the investigation needs to be updated to include these new questions. Without this focus and clarity about the scope, the interested parties will often feel that they were not heard or that the process was not fair.
Think and Act Clearly About Matters of Privilege
For a variety of reasons, lawyers (either in-house or external) have become the “go-to” choice for internal investigations. There are some inherent advantages of having a lawyer as investigator; namely, that lawyers are uniquely trained and experienced in seeking out evidence, asking incisive questions, and organizing and assessing evidence. These are all essential skills of a good investigator. Another advantage is that with a lawyer-investigator, there is an opportunity to keep some or all of the investigation confidential under the attorney-client privilege.
Although there are no guarantees when it comes to claims of privilege for investigations, there are certain steps that can be taken to increase the likelihood of a successful invocation of the privilege. Generally, when there is a lawyer-investigator, it makes sense to initially treat any investigation as covered by the attorney-client (and/or work-product) privilege, reserving the decision on whether to waive the privilege until later in the process. There may be good reasons to waive the privilege later on—for example, to offer the investigation as an element of a defense to a claim of sexual harassment, or because the matter at hand is a very public controversy that requires a very public response. However, unless the investigation is conducted with privilege in mind from the outset, the decision on waiver may not be the institution’s to make, because the privilege will have been lost along the way.
To provide the maximum opportunity to successfully claim privilege, there are some basic steps to keep in mind:
- The investigator’s initial engagement letter should state that the attorney is conducting the investigation in order to provide the institution with legal advice, and that the investigation is considered confidential and privileged under the attorney-client privilege (and, where applicable, the work-product privilege).
- The investigator must give certain “warnings” to parties and witnesses who are being interviewed, generally including that he/she represents the institution, that the investigation is being conducted to provide legal advice to the institution, that the interview is considered confidential and attorney-client privileged, and that the privilege is the institution’s to waive. (Note: it is also critical to document in interview memos the warnings that were provided to the witness.)
- Be clear-minded about the possible consequences on the privilege of publication of the investigation results. There is a widely accepted legal concept called “subject-matter waiver,” whereby if the holder of the privilege selectively discloses privileged materials or communications (e.g., publishes an executive summary), a court may find that the privilege is waived as to some or all other communications on the same subject matter. Of course, if the intention is that the investigation be an open-book, this is not a concern, but it is rare to find a situation where that is the operative intention from the beginning. The bottom line is that counsel and the institution need to clearly think through the possible consequences of disclosure of investigative findings.
With these guidelines in mind, an institution has the chance to successfully claim privilege, and/or the opportunity to decide for itself when and how it wants to waive the privilege.
Make Sure Complainant Agrees with the Investigator’s Statement of Complainant’s Facts
The most common mistake we see time and again is that the investigator fails to obtain the complainant’s sign off on the investigator’s official version of the facts. The predictable end-result is that, if the complainant disagrees with the outcome, he/she will simply say the investigator did not hear or understand what the complainant reported. The net result is that the value of the investigation as an element of a legal defense or for organizational catharsis has been compromised.
There is, however, an easy and straightforward way to prevent such an outcome. As soon as the investigator has written up the facts from the complainant’s interview, these should be shared with the complainant, who should then be asked to make any corrections or additions he/she sees fit. Of course, this may result in a need for a follow-up interview, and a repeat of the process until the complainant’s version has been nailed down. While this process may be iterative and a bit time-consuming, it should ultimately provide a clear written record of the complainant’s acceptance of the investigator’s statement of the facts. In the face of this kind of record, a complainant will be hard-pressed to say the investigator simply got it wrong.
In summary, a well done internal investigation often allows an institution to learn critical facts, regain the confidence of important constituencies, and pave the way for improved organizational performance. By following the above guidelines, an institution and its chosen investigator can maximize the chances of a successful investigatory outcome.
Our Prince Lobel Higher Education and Business Investigations Group has conducted numerous investigations on employment matters (e.g. harassment, discrimination, and wage and hour issues), compliance matters, (e.g., compliance with federal contractor requirements), whistleblower matters (e.g., reports of financial and securities fraud), and college campus controversies (e.g., allegations of discrimination or misconduct against administrators, faculty, and staff). If you want to learn more about Prince Lobel’s internal investigation practice for businesses, nonprofits, colleges, and universities please contact Daniel Tarlow (firstname.lastname@example.org or 617-456-8013), Chair of the Higher Education and Business Investigations Group and the Employment Law Group, and the author of this alert.