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Attorneys Conducting Impartial Workplace Investigations: Reclaiming the Independent Lawyer Role
California Labor & Employment Law Review - Volume 36, Issue 5
Workplace investigations have become a substantial and distinct practice area for California employment law attorneys. Employers are mandated to and risk liability if they fail to conduct impartial investigations of discrimination and harassment.
As a result, many employment lawyers have fled the grind of litigation to embrace a new role as independent workplace investigators.
Skeptics in the plaintiff’s bar and investigation community contend that attorneys cannot be truly impartial, because they conduct independent investigations on behalf of employers in an attorney-client relationship. Critics claim that an attorney cannot conduct an impartial investigation on behalf of a client, because the Rules of Professional Conduct impose a duty of loyalty.2 They also allege that attorneys in fact do not conduct impartial investigations, because the pull of future business from the client undermines their neutrality. Finally, some question whether investigations under the attorney-client privilege is incompatible with impartiality.
We conclude that outside attorney-investigators can and do conduct independent investigations, under the right circumstance and when free from conflicts of interest. The attorney-client privilege does not vitiate lawyer independence. Finally, this new practice area should be embraced as an exercise in independent judgment, which has motivated many to join our profession in the first place.
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