By: Karen Carrera
In the complex landscape of workplace investigations, neutrality and impartiality are non-negotiable. When attorneys step into the role of workplace investigator, they must temporarily shed their identity as advocates and advisors and adopt a fact-finder’s posture. The challenge is particularly acute when the same attorney—or law firm—is also providing legal advice and counsel to the employer. Without careful boundaries, the lines between advocate and investigator can blur, threatening the credibility and defensibility of the investigation.
This article explores best practices for maintaining neutrality and guarding against conflicts when attorneys serve as workplace investigators. It also highlights the potential risks and consequences when impartiality is compromised, whether in perception or practice.
Why Impartiality Matters
The primary goal of any workplace investigation is to uncover the facts objectively, without bias or preconceived notions. Investigations that are perceived as slanted or predetermined—regardless of whether they actually are—can damage employee trust, expose the employer to liability, and render any resulting decisions suspect.
When attorneys investigate workplace complaints, their legal expertise can be a tremendous asset. But if that attorney also advises the company on employment matters, represents the employer in related disputes, or is seen as “on the company’s side,” concerns about impartiality may arise. This dual role can open the door to legal challenges, including claims of bias, conflicts of interest, and inadmissibility of the investigative report.
What Can Go Wrong
- Compromised Credibility
If an investigator is also the organization’s legal advisor, the complainant—or their attorney—may argue that the investigator had an interest in protecting the employer. Even if the investigation was fair and thorough, the perception of bias can taint the findings. Credibility is especially critical if the investigation becomes part of a legal proceeding. A report authored by someone perceived as an advocate rather than a neutral may be given less weight in court.
- Retaliation and Due Process Claims
If an employee feels that the investigation process was unfair or biased, it may fuel a retaliation or due process claim, particularly in public sector or unionized settings. An investigator perceived as favoring management may be seen as contributing to an adverse employment action that lacks fair foundation.
Best Practices for Ensuring Neutrality
- Avoid Dual Roles
The most straightforward way to preserve neutrality is to avoid combining investigative and advisory roles for the same client in the same matter. If your firm provides legal counsel to a client, consider referring out the investigation to another firm or professional. Alternatively, if you’re conducting the investigation, recuse yourself from providing legal advice on the same matter—before, during, and after the investigation.
- Document Your Role Clearly
At the outset of every investigation, document the scope of your role in a written agreement or engagement letter.
- Train Investigators on Bias and Objectivity
Even experienced attorneys benefit from ongoing training in investigative neutrality. Develop awareness of implicit bias, maintain an open mind throughout the process, and treat all parties with respect and professionalism. Your conduct, tone, and documentation all contribute to the perception of fairness.
- Maintain Procedural Fairness
Follow a consistent and transparent process: conduct interviews using the same framework for all witnesses, provide accused employees an opportunity to respond to allegations, and base findings solely on evidence gathered. Procedural fairness strengthens both the substance and appearance of neutrality.
- Use Separate Counsel for Advice
If the investigation could lead to legal exposure or discipline, it’s prudent for the organization to engage separate legal counsel for advice on next steps. This separation of roles allows the investigator to maintain neutrality and provides the organization with clear legal guidance without contaminating the investigative process.
- Anticipate Litigation Scrutiny
Assume that your report could become a key exhibit in litigation. Write with clarity, avoid legal conclusions, and ground your findings in observable facts. A well-organized, neutral report that explains the reasoning behind conclusions is more defensible than one that appears argumentative or overly legalistic.
Conclusion
Workplace investigator attorneys walk a fine line. The same skills that make you a great advisor—deep legal knowledge, strategic insight—can undermine your neutrality if not carefully compartmentalized. To safeguard the integrity of the investigative process, maintain strict role boundaries, document your impartiality, and design investigations that stand up to both internal and external scrutiny. Neutrality isn’t just an ethical obligation, it’s essential to the credibility and effectiveness of the work we do.
For more information on this matter, please contact Karen Carrera.