In my practice as a workplace investigator, I am often brought in by an employer’s regular outside counsel. The idea is that as a neutral third party, I bring an independence to the investigation that might not exist (or be perceived as existing) if the employer’s own lawyer were to conduct the investigation. An added benefit of having outside counsel retain someone like me is that the investigation can be protected by the attorney-client privilege, meaning the employer does not have to disclose evidence relating to the investigation in later litigation. The benefit of the attorney-client privilege can be paramount. In cases where an investigation uncovers potential liability issues, for example, the employer can, with advice from its regular counsel, take the necessary steps to remediate the issue without worrying that its efforts will later be used against it in court.
That’s why the recent case of Koss v. Palmer Water Department should be on the radar of workplace investigators and the attorneys who retain them. In Koss, the federal Massachusets court held that the employer waived the attorney-client privilege because its outside counsel was heavily involved in an investigation conducted by a third party attorney. The facts warrant review.
Koss complained that she had been sexually harassed. In response, the employer retained the services of an independent workplace investigator. The employer’s regular outside counsel, who functioned in a sort of general counsel role for the employer, had significant input into the investigation, including communicating with the investigator during the investigation. In Koss’s subsequent lawsuit for harassment, the employer relied on its investigation to support its claim that it did everything it could to address the situation. When Koss sought access to the investigation documents, the employer claimed they were privileged. Not so fast, held the court.
In ruling that the employer had to disclose the investigation materials to Koss, the court noted that regular counsel was “intimately connected to, if not controlling of, the investigation.” Thus, the employer could not simultaneously rely on the investigation as part of its defense while trying to shield it under the attorney-client privilege.
What’s the takeaway for employers? Before you commence a workplace investigation, be very clear on the contours of the privilege. Do you want the investigation to be privileged? If so, make sure outside counsel sits on the sidelines during the investigation process. Such counsel should be very involved in providing legal advice after the fact, but their involvement with the investigator could prove fatal to a later claim of privilege.