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Why Attorneys Should Conduct Company Internal Investigations

Spring 1997

Our Labor & Employment Practice Group would be happy to assist you with any questions relating to this article.

So, your company has just received a complaint that alleges illegal harassment (based, for example, on race, sex, or age). You know that the only way to minimize or eliminate your legal liability is to do a prompt investigation; but who is the best candidate for the job of investigator? Increasingly, companies are concluding that their attorney is the best choice. There are a number of reasons supporting this conclusion.

The most important reason to have an attorney do the investigation is possible coverage by the attorney-client privilege. Only an attorney can create the maximum protection available under this privilege. The attorney-client privilege is created when a communication occurs, which is made in confidence, to an attorney by a client for the purpose of obtaining legal advice. This privilege may be invoked by the client to protect the content of the communication.

Why would your company want to protect the investigation with attorney-client privilege? It is true that a company may ultimately need or want to waive the privilege to prove that it acted in good faith, took reasonable steps to investigate the harassment complaint, or for other reasons. It may be advantageous to a company, however, to have the choice whether to disclose the communications at issue. For example, an investigation may prompt the disclosure of damaging and/or embarrassing facts which the company must consider, but might prefer not to admit.

In determining the most appropriate person to investigate a complaint of harassment, it also is important to ensure that the investigator understands applicable law, e.g. illegal harassment; is familiar with company policies; has good interviewing skills; and is not a friend or social acquaintance of either party. An attorney experienced in investigations who knows your company should serve these objectives and is more likely to be familiar with the technical considerations surrounding the generation and maintenance of investigatory records. Having an attorney do the investigation also often adds credibility to the investigation and sends the message that the company is taking the complaint seriously.

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