An employee comes to you and complains of discrimination and harassment. You’re worried the charges may blow up into something big so you want to keep the matter confidential. Your first instinct may be to call in your lawyer to get to the bottom of things, but that isn’t always the wisest course. An employer whose attorney investigated a worker’s complaint is currently embroiled in an expensive dispute over which investigation documents can be kept confidential and which must be turned over to the employee. We’ll look at the court’s ruling on this subject and share strategies for when to use-and when not to use-your lawyer.
Employee Charges Discrimination
Barry McCombs was an employee of Blue Cross of California in Los Angeles. He complained to the human resources department about racial discrimination and then filed a charge with the California Department of Fair Employment and Housing. After his complaint, McCombs said he began to receive negative performance reviews and was harassed by his supervisor.
Attorney Investigates
McCombs took a medical leave because of the alleged harassment, but was terminated on his return. Before the firing, Blue Cross had its attorney investigate McCombs’ race discrimination allegations. The lawyer concluded the charges were unfounded.
McCombs then sued Blue Cross. He demanded that the insurer and its attorney turn over all documents relating to the investigation. Blue Cross said the papers were private and refused.
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What’s Confidential?
The general rule is that communications between a lawyer and client are confidential. But McCombs claimed that because Blue Cross’ lawyer acted as an investigator rather than as an attorney, the documents were not shielded by the attorney-client privilege.
The California Court of Appeal found the issue to be more complicated than that. There is no blanket rule, the court said, that eliminates the attorney-client privilege simply because an attorney is brought in to investigate allegations of wrongdoing. What is important is whether the document in question relates to routine fact-finding by the lawyer, in which case it would not be privileged, or whether the document contains legal advice, in which case it would be confidential.
The court ruled the documents must be reviewed by the lower court to identify which involved legal advice and which didn’t.
Risks Of Using A Lawyer
So was it a good idea for Blue Cross to bring in its attorney to investigate the charges? Fred Plevin, a partner with the San Diego law firm of Gray, Cary, Ware and Freidenrich, told CEA that using an attorney to conduct an internal investigation is sometimes the least desirable option. Most investigative documents like interview notes and fact summaries won’t be protected from disclosure because they don’t involve legal advice.
Another problem is that if your lawyer conducts the internal investigation, the attorney might be required to testify as a witness if you’re sued. Because of the legal profession’s ethical rules, this could mean you’d have to hire a new lawyer to represent you at trial.
Investigation Tips
Some advance planning will enable you to handle most straightforward complaints yourself without hiring a lawyer. However, an attorney can still play an important role if you face more complicated charges. Here’s the best way to approach these complaints:
- Use someone with experience. It’s crucial that the person you assign to handle the investigation be experienced and capable of conducting a thorough and fair inquiry. Select a non-involved manager or human resources department employee to investigate the complaint, or hire an experienced HR consultant. The person should have credibility, knowledge of company policies, sensitivity and good interviewing skills.
- Use attorneys selectively. Once you’ve picked an investigator, your attorney can help guide the process. For example, the lawyer can assist in planning the investigation strategy, suggest questions to ask witnesses, make sure your final conclusions are justified by the facts, and review documents to make sure they’re worded appropriately.
- Know what’s protected. Many employers mistakenly believe that simply sending copies of documents such as investigation notes or witness statements to an attorney will protect them from disclosure in the future. But communications are privileged only if they’re made for the purpose of obtaining legal advice. That means if you write a memo to your attorney asking for a legal opinion, it will probably remain confidential even if facts are sprinkled in as well.
Investigative documents, however, including internal memos and written statements by employees, could eventually come out in court. So think carefully before you commit anything to writing. Treat even the most private document as if a jury will see it.
- Make investigation documents work for you. Attorney Plevin notes that rather than viewing the investigation file as something to keep hidden, think of it as evidence you might want to introduce at trial to show your actions were justified. Make sure your paperwork reflects that your decisions and conclusions were made fairly and impartially.