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The Witness Files: The Counseled Complainant

What to do when an employee brings a lawyer to the investigation interview

Posted by Bill Nolan on January 21st, 2014

In this series I consider common issues that arise with witnesses in workplace investigations. Some of the issues pertain to the complainant, some to the accused wrongdoer, and some to third party witnesses. Here we consider what to do when an employee brings a lawyer to the investigation interview. While any witness could have legal counsel, that arises most commonly with the complainant, so we will use that scenario as our discussion point.  As always, be sure to consult with your own counsel for any rules and considerations unique to where you are doing business and to your company.

In one sense, a lawyer is not only an uninvited guest but  usually considered unwelcome by employers. One common theme in my discussions of investigations is the importance of controlling the flow of information. The more the employer can control the flow of information, the easier it is to manage the investigation process and minimize the various risks associated with an investigation situation.

For example, recently in this series, I addressed the challenges to that principle presented by the gossipy co-employee (including some limitations on managing their communications). Inserting a strong-willed lawyer who is paid to represent the interests of a single individual rather than those of the company can present a challenge.

Advantages of Counsel

On the other hand, experienced and competent counsel for a complainant can sometimes be helpful in managing a potentially explosive situation. An experienced employee-side lawyer will recognize that the best result for his or her client may often be to find a solution that enables the employee to continue working at the company, not drive the matter towards litigation. The lawyer may understand better than the client the company’s need to take some time to work through matters, and may be of assistance in counseling a client to maintain confidentiality.

Further, the presence of potentially adversarial counsel will often cause key top level people to give the situation the attention it deserves, which will often be helpful in crafting a resolution the company will stand behind. It can be easier for human resources and other personnel charged with overseeing investigative processes when their bosses are at the top of their games

I have seen plenty of examples of both positive and negative aspects of the presence of counsel, and how you manage counsel for the complaint will – like so many aspects of workplace investigations – depend on the specific situation.  There are several rules of thumb to keep in mind when a lawyer shows up for the complaint.

3 Rules for when an Employee has Representation

1. Do not express disapproval to the employee. We all have the right to hire a lawyer. As discussed below, the scope of that lawyer’s involvement may be limited, but the employer should not express a hostile reaction when learning of a lawyer’s involvement, and management employees who learn of or must be told of the lawyer’s involvement should be advised of this as well. Simply say to the employee, “Well, please provide me with the contact information and we will determine how to follow up.”  (By the way, my experience is that one fairly common result is that the employee referencing some unnamed lawyer does not actually have one, so this calm response will best smoke out that scenario as well.)

Expressing negativity about the lawyer could later become evidence harmful to the company in a retaliation claim or perhaps even a wrongful discharge claim.  The specifics of that will vary in different locations, but this is a good rule of thumb for all employers.

2. Communicate with the employee’s lawyer only through counsel. There are certainly workplace investigations that do not require significant involvement of legal counsel, particularly if you have proactively worked with legal counsel to establish a decision making framework for when counsel should be involved. The involvement of legal counsel for a complainant should be considered a clear red flag for you to immediately consult with the company’s legal counsel. With no disrespect to the many experienced and savvy human resources and other business professionals who may handle investigations, working directly with the employee’s counsel is not usually a fair fight. At least make sure counsel for the company is consulted before any contact with an employee’s counsel.

3. The employee’s lawyer is not in charge. Generally the presence of a lawyer for the complainant should not dramatically change your action steps. I normally take the position that the presence of a lawyer for the complainant does not inhibit the employer’s right and ability to communicate directly with its employees. This becomes somewhat more complicated if counsel for the company is conducting interviews because of lawyers’ professional rules largely prohibiting us from communicating with parties who have representation. This is one potentially delicate area reinforcing the advice above to consult with counsel to ensure compliance with the laws applicable to your company.

Likewise, while you may often choose to allow the employee’s lawyer to be present for his or her client’s interview, this is a company process, not a trial. The lawyer does not normally have the right to be a full fledged participant and direct the course of the investigation. Normally this is not a problem, as lawyers recognize that their clients have to cooperate to some degree in order for the company to be able to remedy the situation, but at times there will be disagreement on this point that must be worked through.

In short, if a lawyer shows up for an employee in an investigation, don’t panic. It is just one more aspect of the particular investigation to carefully work through while gathering as much information as the company reasonably can, then making a good decision about next steps based on the information obtained.

Bill Nolan
Bill Nolan

Managing Partner, Ohio office of Barnes & Thornburg LLP

Bill Nolan opened Barnes & Thornburg's Ohio office in April 2009, seeking to bring a unique energy, geographic platform, and business model to the Ohio legal market. He strives to bring attentiveness and clarity to employment, contract, and other disputes, and on helping clients build teams, policies and processes to minimize the frequency and severity of disputes.

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