Seven Rules of Professional Conduct Every Investigator Needs to Know

All California attorneys, including attorney investigators, should be familiar with the State Bar’s Rules of Professional Conduct. Some of these rules can have unique or surprising implications for attorneys who conduct or supervise investigations. Here are seven Rules of Professional Conduct that attorneys involved in workplace investigations should pay attention to closely.

Rule 1.1

An attorney must satisfy the duty of competence throughout the entire investigation process, including in these three key areas:

Choosing an Appropriate Investigator¹
The investigator should have adequate qualifications and training. The investigator should have knowledge about standard investigatory practices, including knowledge of laws and policies relating to the substantive area at issue (e.g., harassment or discrimination), techniques to question witnesses, documenting interviews, and analyzing information. For more serious or complex allegations, the investigator should have prior experience conducting such investigations.²

The investigator should assess whether they have any biases that would interfere with coming to a fair and impartial finding and, even if they can be neutral and impartial, they must evaluate whether their involvement will create the perception of bias. It may be appropriate to consider using an experienced outside investigator any time a company’s internal investigator’s impartiality can be questioned.

It also may be appropriate to consider an outside investigator when the allegations involve executives, officers, board members, celebrities (or other high-profile individuals), in-house counsel, or human resources.

Conducting the Investigation
The investigation should be prompt, thorough, and fair. The accused party is entitled to know the specific allegations being made and given the opportunity to respond. The complainant should be interviewed, as should relevant witnesses. These interviews should be appropriately documented. Relevant documents (including texts and emails) should also be reviewed. After all of the information is collected, reviewed, and analyzed, the investigator should reach a well-reasoned conclusion.³

Making Findings
Investigations will often involve incomplete evidence or “he said, she said” situations. In such scenarios, investigators must make credibility determinations in order to reach findings. The DFEH Guide contains a list of credibility factors to consider in making these determinations. Investigators should make findings based on the “preponderance of the evidence” standard—i.e., whether it is more likely than not that the alleged conduct did or did not occur.

Rule 1.6

Rule 1.6 contains the duty of confidentiality, which includes the attorney-client privilege.⁴ An investigator should take steps to preserve the attorney-client privilege throughout the investigation.

Not all attorney-led investigative work automatically qualifies for the attorney-client privilege. For an investigation file to fall within the protections of the attorney-client privilege, the “dominant purpose” of the workplace investigation must be to obtain legal advice or legal services (not simply routine fact-finding). Attorney investigators should be aware of the relevant case law about how and when the attorney-client privilege applies in investigations.⁵

In addition, the employer waives the attorney-client privilege when it asserts affirmative defenses that put the adequacy of the investigation at issue. As such, investigators should handle all documents created during the investigation with this in mind.

Rule 1.13

Rule 1.13 makes clear that, when an attorney is employed or retained by an organization, the client is the organization itself. In dealing with an organization’s constituents, a retained attorney may have an obligation to explain the identity of the client in certain circumstances. To maintain compliance with this rule during an investigation, an investigator should clearly identify the client whenever the organization’s interests are adverse or could be adverse to the interviewee.

Rule 3.7

Rule 3.7 limits an attorney’s ability to serve as an advocate when that attorney is also likely to be a witness. If an investigator plans to represent the employer in any anticipated litigation, he or she should obtain informed written consent from the client. Even with such informed consent, the investigator risks being disqualified from later representing the client at trial.

Beyond these procedural hurdles, an investigator who represents the employer at trial risks placing the integrity of the investigation in question. Opposing counsel may argue—and a jury may perceive—that an attorney who represents an employer as an advocate at trial cannot at the same time also wear the hat of an impartial investigator. This argument could be even more potent if the attorney has had a lengthy relationship representing the employer as an advocate, as this might contribute to the perception that the investigator harbors a bias in favor of the employer. A jury’s belief that the investigation was not truly impartial could adversely affect the outcome of the trial for the employer.

Rule 4.1

Rule 4.1 prohibits false statements of material facts to third parties. In an investigation, this prohibition may come into play during interviews of non-employee witnesses. It should go without saying that investigators should not make false statements of material facts to witnesses. Beyond that obligation, it is important to make the purpose of the interview clear, to identify the client, to explain that the interview will be shared with the company, and not to promise complete confidentiality to the interviewee.

Rule 4.2

Rule 4.2 provides that, in representing a client, an attorney shall not communicate directly or indirectly about the subject of the representation with a person the attorney knows to be represented by another attorney in the matter, unless the attorney has the consent of the other attorney. This rule applies to attorney investigators seeking to interview a represented complainant or other witness.

If a witness is represented by an attorney, the simplest option is to obtain the attorney’s written consent to interview that witness. The attorney may ask to observe the interview as a condition of their consent, which must be allowed if the investigator wants to proceed with the interview. Even Rule 4.2 aside, refusing this request could also create the appearance of unfairness, especially if the employer has previously allowed counsel to attend interviews.

Another option is to have a non-attorney conduct the interview. However, note that Rule 4.2 also applies to indirect ex parte communications with a represented party. Exercise caution before scripting something for the client to discuss with the complainant.

Rule 4.3

Rule 4.3 imposes additional requirements when dealing with unrepresented parties. An attorney cannot state or imply that they are disinterested, nor should an attorney offer legal advice, other than the advice to secure counsel.

In addition, when communicating with an unrepresented party, an attorney should not seek to obtain privileged or confidential information that the attorney knows, or reasonably should know, the person may not reveal without violating a duty to another, or which the attorney is not otherwise entitled to receive. In the context of investigations, this may come up when interviewing psychologists, spiritual advisors, and spouses. Investigators should obtain the consent of the party whose privileges are implicated and understand what topics the investigator can or cannot discuss.

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Attorney investigators must comply with the Rules of Professional Conduct. Therefore, it is important to understand how these rules apply throughout the entirety of conducting an investigation.

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¹ California Business and Professions Code Sections 7520 et seq. limits those who can conduct investigations to (i) an organization’s regular employees; (ii) a licensed private investigator; and (iii) an attorney performing his or her duties as an attorney at law.

² The Department of Fair Employment and Housing’s Workplace Harassment Guide for California Employers (“the DFEH Guide”) is a helpful reference for more information.

³ The DFEH Guide and California case law provide additional guidance on what constitutes an adequate investigation. For more, please see our earlier article, “Conducting Adequate Investigations: Five Cases Every Investigator Needs to Know.”

⁴ See also California Evidence Code Sections 950-952, 954.

⁵ For more, please watch for upcoming article, “Three Cases Every Investigator Needs to Know Regarding Privilege.”