By: Liz Rita
In today’s workplace, employers face increasingly complex allegations of harassment, discrimination, retaliation, and misconduct. When these issues arise, many organizations instinctively turn to their trusted outside employment counsel — the same lawyers who draft policies, defend claims, and advise them day-to-day.
But that instinct, while understandable, can create significant risk. Because an investigation conducted by your law firm is fundamentally different from an investigation conducted by an investigations law firm.
The distinction may sound subtle, but it isn’t. The roles, obligations, ethics, expectations, and even the mindsets of advocates versus investigators are markedly different. And when those roles get blurred, both the employer and the attorney are exposed.
Why Regular Outside Counsel Should Not Be Your Investigator
When your regular employment counsel steps into the role of “neutral investigator,” they are being asked to temporarily discard the very qualities that make them good lawyers: loyalty, advocacy, strategy, risk mitigation, and a deep alignment with your organizational interests.
These instincts are incompatible with the independent fact-finding required in an impartial workplace investigation. Even the most ethical, well-intentioned attorney cannot simply switch off years of training to become a neutral decision-maker.
Investigators must ask, “What happened?” Lawyers are trained to ask, “How do we defend this?” Those orientations are not reconcilable.
The Built-In Conflict of Interest
Courts and ethics bodies increasingly recognize the inherent conflict when a law firm attempts to serve both as advocate and investigator. A lawyer cannot simultaneously protect the client, anticipate litigation, evaluate credibility, make factual determinations, and present themselves as unbiased.
If the matter later becomes litigation — and many do — everything the lawyer did as “investigator” becomes fair game for the plaintiff. The investigation’s neutrality, thoroughness, and fairness are attacked. And because the investigator is also the defense lawyer, the entire process becomes entangled.
In short: Using your law firm as an investigator can end up undermining your law firm’s ability to defend you.
The Privilege Trap
Another serious issue arises when legal counsel conducts an investigation: privilege becomes muddled, and often lost.
If the investigation is framed as neutral fact-finding, the results are not privileged — nor should they be. But when the same lawyer also advises on the legal consequences of those facts, privilege and work-product become intertwined in ways that plaintiffs’ lawyers are increasingly skilled at challenging.
When the boundaries blur, privilege erodes.
The Credibility Gap
Employees — and juries — know the difference between an independent investigator and a company lawyer.
When they hear “the company’s attorneys investigated the company,” they assume bias, pre-determined outcomes, protectionism, or influence by leadership.
Even when the findings are accurate and fair, the perception of partiality can undermine them. Independent investigators bring no allegiance to the employer, no prior knowledge of personalities or politics, and no stake in outcomes — and that credibility often determines whether an issue escalates or resolves.
Why an Investigations Law Firm Is Different
An investigations law firm is built for a different role entirely. Such a firm is not an advocate in the underlying matter. It will not defend claims. It will not advise on risk, draft new policies or recommend personnel action.
An Investigations Law Firm will figure out what happened as an impartial fact-finder. Full stop.
That distinction protects the employer and preserves the integrity of the investigation. It also protects the employer’s regular outside counsel, allowing them to stay in their proper lane — as strategists, advisors, and defenders — without compromising privilege or credibility.
The Bottom Line
Using your outside employment counsel as your investigator is not just inadvisable — it is risky. Risky for employers. Risky for counsel. Risky for the defensibility of the entire matter.
And in litigation, those risks are often exposed at the worst possible time.
By contrast, using an independent investigations law firm preserves credibility, protects privilege, avoids conflicts, strengthens employee trust, and ensures that your outside counsel can continue to serve as your advocate — not your fact-finder.
At ILG, investigations are not a sideline — they are our core practice. We partner with outside counsel to ensure investigations are impartial, defensible, and credible, while preserving the attorney–client relationship for advocacy and advice. When it matters most, neutrality is not just best practice — it’s protection.