Initial Concerns in Setting up an Investigation

A good investigation requires many complex skills that include managing the investigation, doing interviews, and making credibility determinations. A credibility determination requires the investigative team to analyze the facts and decide the truth of the matter, sometimes with conflicting evidence. The investigation must be done skillfully and must consider legal issues.

If the persons involved in doing an investigation do not have sufficient skill, your investigation may not be done well. This could lead to permanent detrimental effects on alleged victims, alleged wrong-doers, and the organization itself.

A poorly executed investigation may have legal ramifications. For instance, in one case, a company did not follow up by asking the offender about his harassing remarks, or check with an employee who had left the company because of sexual harassment. The investigator was inexperienced. In a lawsuit, the defendant may sometimes use an affirmative defense, which gives a reason why the defendant is not liable. The company tried to establish the affirmative defense that it exercised reasonable care to prevent or correct the harassment, which is a legitimate defense in employment law cases, but did not succeed because the investigation was so poor (Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000)).

When abuse has happened, the organization’s legal responsibility is determined by whether its actions were reasonable. So an inadequate investigation of abuse may leave an organization open to allegations of negligence. The quality of the investigation may be an important part of the legal defense if there is a lawsuit.

Consider: what money and time will it take to get the investigation right for the sake of both the individuals involved and the organization?

Next, do you need an attorney involved in the investigation? If an investigation is just for fact-finding, and you have no need to do any evaluation of legal consequences, you won’t need an attorney. If you have some concern about legal analysis of consequences, liability risk, and remedial options, you need an attorney involved.

If the investigation is extremely simple and you cannot imagine any way it could turn into a lawsuit, you may not need an attorney involved. If the situation is more complex, you may need an attorney involved to some extent. If it is potentially explosive or could threaten the existence of your organization, you may need an attorney deeply involved. Your attorney should be able to help you think through the possible ramifications of your investigation.

You may want legal advice about several areas: how to conduct the investigation so that it is well-executed and also protected; how to comply with statutory requirements; and how to avoid serious legal consequences. Another reason to have counsel is to protect important policy discussions with attorney-client privilege. Finally, having an attorney involved may also mean that the work of the investigation is protected as the attorney’s work product.

Consider: what level of risk are you taking on–risk to reputation, risk of legal challenge, financial risk, and risk of failing to carry out the investigation competently? Do you need an attorney to advise you on these issues?