Don’t Let Investigations Fail before they Start: What Every Advocacy Counsel Needs to Know

ILG’s Elizabeth Rita and Anne Rooney McCord recently presented an “Investigations Master Class for Advocacy Counsel.”  While we cannot fit everything here, we thought many of you would be interested in some of the main points, trends, and suggestions from the presentation.

One key reason employees sue, not often highlighted, is an employer’s terminal failure of curiosity and lack of demonstrated concern. In our experience, employers that respond to allegations with openness and treat individuals with human dignity reduce (though do not eliminate!) key motivations to sue (even where there has been underlying misconduct).

Your clients’ openness and concern are not, of course, enough.  It’s important that they are ready to triage their response to complaints, hopefully with your counsel. First, they should categorize the claims as misconduct towards another (e.g., harassment) and/or against property (e.g., misuse of funds).  Second, they should do an initial assessment of the apparent severity and extent of the issues by asking:

  • How many subjects and complainants?
  • Is this a single incident or pattern of conduct?
  • Is there minor, moderate or major significance?
  • Do we need expertise (forensic IT, Accounting or professional investigator)?
  • Do we anticipate litigation?
  • Are there reporting requirements?
  • Is there a risk of media coverage?
  • What is the level of employees involved? Are union employees involved?

Third, depending on the answer to some of these questions, you and your clients must determine whether the matter can be investigated internally or through a third party.  For instance, less severe allegations with little litigation exposure might be suitable for an internal investigation.  Such is particularly true if your client has a trusted person to conduct the investigation with internal expertise that may prove efficient and beneficial.  In those cases where the nature of the alleged conduct is severe, litigation exposure is high, and/or media exposure is a concern, an outside investigator is likely warranted.  Moreover, if allegations are against high-level officials or your client lacks a trained and trusted internal investigator, an outside investigator should be strongly considered.

Fourth, spoliation is a key consideration when you hear about a complaint from your client.  Address it immediately, keeping the following in mind:

  • Know what documents are out there and what you need to protect
  • Counsel clients on litigation hold letters, which are frequently misunderstood and misapplied (and often too late)
  • Don’t blindly trust your regular client contact to have the pulse of the situation.  A bit of skepticism can benefit the client.
  • Get Electronically Stored Information and other data from objective sources and lock it down now.

Finally, some key reminders.  If you are dealing with allegations of any seriousness or litigation exposure, do not tell your clients to:

  • Call up the respondent and ask for his or her take on the complaint
  • Send him or her the complaint
  • Look into the complaint informally
  • Start without a plan

Once you have gotten out of the triage portion of the process, the plan will include many considerations, including, during the first week, assessing the need for interim actions, identifying an investigator, and implementing an anti-retaliation plan.  Then, in the next 30 to 60 days, you (or an outside investigator) must ensure that there is a disciplined and defensible investigation plan in place and that it is followed. You and your client must consider factors such as witness identification, adequate questioning procedures, best practice on credibility determinations, and what to consider when deciding on the nature and extent of the investigation report.

Finally, we are seeing some key trends in our work:

  • Companies choosing to investigate sooner – before clear legal issues arise
  • #MeToo Backlash – be aware of this when working with your clients.
  • Pre-investigation investigations.
  • More interest in training that actually works – Respectful workplace training programs are becoming the norm!
  • Panic in the face of allegations because of social media and news.
  • More cases turning on instant messaging, text and social media posts – email not so much.
  • Much more aggressive attacks on the adequacy of the investigation (and the investigator).
  • More subpoenas, depositions and trials for advocacy counsel.

Don’t hesitate to reach out to us if we can support you as you navigate these murky waters.  Remember, your problems are our passion!