April 2001


Akin, Gump, Strauss, Hauer & Feld, L.L.P.


 . . .  You can look these up all over the net by using google and the following search terms:  “FTC attorney witness employment sexual discrimination investigation waived”

This link is from a 2001 legal analysis reporting on the FTC findings of 1999, and I skip down to letter H of that document.  .  .


 . . .

H.  Legal Counsel as Investigators

. . . (Discussion of the FCRF. . . not important for the point I am making)

There is certainly a legitimate and important role for legal counsel in workplace investigations, especially if the issues involve potential legal liability. The role of legal counsel, however, will typically be as a behind-the-scene advisor and consultant, not as an investigator.


As indicated above, the use of outside legal counsel for the actual assembly of information relevant to the investigation or for the interview of witnesses may implicate the FCRA.


Regardless of whether an attorney is in-house legal counsel or from outside your organization, an attorney who is directly involved in interviewing witnesses or gathering evidence may be a fact witness in any subsequent legal proceedings, and thus may be disqualified from acting as the employer’s attorney.


Qualities that make a person a good legal advocate do not necessarily make the attorney a good witness.


The use of an attorney in planning an investigation, and in analyzing the results, may be very beneficial for the protection of sensitive information under the attorney-client and work-product doctrines.

For example, communications with legal counsel will be privileged as attorney-client communications, and documents created at the request of legal counsel may qualify for protection from disclosure under the attorney work-product doctrine.


If the attorney is involved in interviewing witnesses or directly gathering evidence, however, there will likely be a need to disclose the attorney’s notes or have the attorney testify about his or her role in the investigation. In this situation, the attorney’s advice to the employer will probably not be privileged, and opposing counsel may be able to force disclosure of all communications between the attorney and client regarding the subject of the investigation.

. . .