Due to the importance of conducting legally sound investigations of harassment and discrimination complaints and given the increasing sophistication of plaintiffs’ counsel in attacking an employer’s assertion of the Faragher/Ellerth affirmative defense, many employers use attorneys to conduct these types of investigations. Often, they will also, as a matter of course, use their regular counsel (in-house or outside) to do the investigation, with minimal to no strategic consideration of that selection decision or evaluation of the potential conflict issues.
A recent $300,000 sanction in a Title VII case against an employer and its counsel by a federal court in Ohio serves as a cautionary tale for employers and their counsel on the importance of making strategic, thoughtful selection decisions when selecting legal counsel to conduct an investigation into an internal complaint covered by Title VII. The case has also reignited the discussion about whether the professional rules of conduct should be amended to clarify that the roles of Title VII litigation counsel and Title VII investigation counsel are inherently incompatible.