What's The First Step?
Once, you have retained a neutral attorney investigator, the usual process of an investigation is this:
Step 1 Your investigator will review relevant documents, including the complaint if it is in writing.
Step 2: Your investigator will plan to meet with the complaining (former) employee(s) first. If she/he will not meet, your investigator will make more than one documented attempt to contact her/him.
Step 3: Your investigator will interview the alleged wrongdoer(s).
Step 4: Your investigator will interview additional witnesses.
Step 5: If necessary, your investigator will re-interview the parties to allow them to respond to any additional allegations.
Step 6: Your investigator will review corroborating evidence.
Step 7: Your investigator will conclude the investigation with a Verbal Report.
Step 8: Upon written request, your investigator will provide a Final Written Report to the Company Representative.
* Please contact us immediately if you are concerned about anyone's safety or potential retaliatory acts from or against any of the parties or witnesses so that we can discuss interim protective measures.
How Long Will It Take? How Much Will It Cost?
Technically, that's two questions, but we will do our best to explain why we can't answer either of them...yet. We have no idea how long an investigation will take until your investigator meets with the complainant and the accused. From those two interviews, your investigator derive an initial investigation plan and witness list. At that point, she will circle back with the client to discuss how many more interviews she will need to conduct and how long she thinks it will take. Additional time is required for legal analysis and a written report. Our rates are competitive and often lower than those charged by regular outside counsel.
Is This Privileged?
We are attorneys. Once you retain us, you are our client. Therefore, it is our opinion that our relationship invokes the attorney client privilege. EXCEPT...you're going to want to treat your investigator, conversations with her and the entire investigation, including our report AS IF there is no attorney-client privilege. Why? Because, at some point down the line, if you are sued, you will want to use the fact that your company conducted an immediate, thorough and fair investigation as either your defense or to mitigate damages. When you do so, you may be advised by your outside counsel to waive your privilege over this investigation and our report. So, it's best to operate from the get go with that potential eventuality in mind. In other words, DO NOT share privileged information with your investigator and get all LEGAL ADVICE from another employment lawyer (we are happy to make a referral). Always keep in mind, that your investigator may be a witness in any potential litigation that relates to the complaint she is investigating. (Disclaimer: the issue of whether a neutral attorney investigation qualifies as privileged attorney work product is still being debated in the courts and is often decided on a case by case basis.)
What if the Complainant Has a Lawyer?
As an attorney, we are obligated under the Rules of Professional Conduct to get counsel's permission to speak with his or her client. Therefore, if the complainant (or anyone) is represented by counsel, the first step is to contact their attorney and ask permission to interview him or her. In our experience, most attorney's advise their clients to cooperate with a neutral attorney investigation.