On October 7, 2013, the United States District Court in Massachusetts issued a ruling discussing the potential problems associated with hiring your defense lawyer to perform investigations into employee misconduct.  The case of Koss v. Palmer Water Department is discussed below.

What You Need To Know.  If you want to conduct an investigation into employee misconduct.  You need to bring in an independent investigator as opposed to your regular defense counsel.  Because the investigator could be called as a witness at a subsequent trial and ordered to turn over all his or her work papers, you don’t want your defense lawyer conducting the investigation, testifying as a witness, and being barred from representing you.

The Palmer Water Department received a sexual harassment complaint brought by one of its employees.  If that happened to you, what to do?  You know you have to investigate, find out what is going on, and stop harassing conduct if it is occurring.  So, you do what Palmer did, you call your trusted defense counsel, who handles your lawsuits, to manage the investigation.  Who better, right?

Wrong!  Palmer’s defense counsel completed the investigation but, as a result, his work product became discoverable in the subsequent lawsuit.  It is now possible that defense counsel, as investigator, will be called as a trial witness.  If so, defense counsel may be prohibited from defending the Palmer Water Department and a new lawyer will have to be brought in and brought up to speed.  This is time consuming and costly.  It would have been better to hire an independent lawyer to conduct the investigation.

Defense counsel needs to be ready to defend the company and the results of the investigation.  A good investigation may help you defend that your company addressed the complaint quickly and eliminated the harassment.  You may want your investigator to be your star witness and the investigation report to be Exhibit A.  If the investigation and report are completed or supervised by defense counsel, counsel could become a fact witness and forced to withdraw from defending you in the lawsuit.

In Koss, defense counsel managed the investigation and tried to keep all the investigation documents shielded from disclosure by invoking the attorney-client privilege and the work product doctrine.  The court disagreed, however, holding that the company could not rely upon its excellent investigation to help defend its conduct and refuse to produce the investigation documents.  The courts stated:

Defendants deliberately placed the internal investigation of Plaintiff’s complaints at issue in this lawsuit . . . accordingly, Defendants cannot rely on the thoroughness and competency of its investigation and corrective actions and then try and shield discovery of documents underlying the investigation by asserting the attorney-client privilege or work product protections.

When you have to investigate employee misconduct, you want to bring in an independent, experienced investigator who can provide a clear review of your company.  You want someone who can be a witness to all the good things the investigation proves about how your company handles employee misconduct.  You want an attorney who can craft an investigation report that will help your defense counsel in the event you get sued.  Finally, you want an attorney investigator because the attorney’s legal advice will still be protected as an attorney-client confidence even if the written investigative report is available for review.  EmCo Consulting has the experience to conduct investigations into employee misconduct and provide the support you need should you get sued by an employee.  If you find yourself with evidence of employee misconduct, contact EmCo to help you investigate and resolve this problem.