Ask These Questions Before Investigating Misconduct Allegations

Public and private institutions increasingly are called on to conduct investigations into allegations of wrongdoing. Those allegations may involve claims of sexual misconduct, financial misdealing, or violations of state and federal laws and regulatory requirements.

Whatever the crisis that prompts the need for an impartial inquiry, decision-makers typically face a series of questions that should be carefully considered before initiating an investigation.

Internal or external? Will the investigation be conducted internally—for the benefit exclusively of the entity’s management team and/or directors—or will it be external and disclosed to a wider audience, or even the public at large? Issues of confidentiality, potential law enforcement action, public pressure, and possible political fallout should be considered in consultation with counsel.

For example, in an investigation conducted for a diocese plagued by allegations of clerical abuse, the bishop and diocese’s legal counsel decided from the outset that all findings and conclusions would be released to the public notwithstanding any risk that such disclosure might result in further claims against the diocese.

Should the investigation be designed to protect available legal privileges? Assuming a law firm will be retained to conduct an investigation, an important consideration is whether the engagement will specify in substance that the firm is being retained as counsel to conduct an investigation into the following matters.

Such a formulation may allow the organization authorizing the investigation to preserve claims of attorney-client and other privileges, potentially insulating itself from demands by law enforcement or regulatory bodies to produce materials and witness interviews generated during the investigation. Of course, if the investigative results are made public, any potential claim of privilege may be deemed waived.

What is the appropriate scope of the investigation? Defining the scope of the investigation is critical to its success.

Is the investigation open-ended and subject to the judgment and discretion of the investigators to pursue potential related misconduct that may not be immediately apparent? For example, the mission could be defined as an “inquiry into allegations of sexual and any related misconduct by the regional manager and the failure of management to identify and eliminate that behavior.”

Or is the subject matter more narrowly defined, such as “while serving as regional manager did the executive engage in inappropriate behavior with a specific subordinate?”

Some of my clients have decided to authorize a broad mandate to my team to avoid potential criticism that the investigation was compromised by limiting its scope.

What are the strategies for document collection and preservation and witness interviews? Closely related to defining the scope of the investigation is identifying the universe of witnesses and documents subject to review. Are all employees and management including chief elected officials and C-suite executives required to fully participate in the investigation, including sitting for interviews?

Will management direct that all employees and executives must cooperate in the investigative process? Will a preservation notice be sent to all people within the organization directing that all electronic and paper documents and accounts be preserved? Will the investigator have access to all relevant materials either through forensic investigative processes or individual review of specific materials?

Investigators often will retain a forensic consultant to collect electronic records and subject that information to various analytic tools. Success of those efforts depends on the full cooperation and assistance of the entity’s information technology department. Protocols for the preservation and storage of the electronic data should be considered by the investigator, the forensic experts, and the organization’s IT department.

Which manager or management team is responsible for overseeing the investigative process? The investigation’s success will depend on clear lines of communication between the investigator and the leadership of the entity authorizing the investigation.

Multiple practical questions concerning access to witnesses and evidence frequently arise. Who is charged with managing that process and assuring that any issues or impediments are quickly and clearly resolved? If the scope of the investigation may reach the CEO or upper management of the organization, who will serve in this liaison capacity such that the integrity of the investigative process isn’t compromised by having potential subjects of the investigation direct it—or appear to be directing it?

We routinely require a person or group within the organization to be designated with full authority to respond to multiple questions and requests for information and witness availability.

What is the nature and structure of the final report? Is the investigator charged with preparing and filing a written report of the investigation’s results? Should the report set forth only facts, or are analysis of and conclusions about the underlying conduct required?

Does the organization engage the investigator to offer recommendations to address the issues that prompted the investigation? Does the investigator possess the expertise to offer such recommendations, or will subject matter or management consultants need to be retained to provide substantive proposals?

An investigation from an objective third party can be an effective technique for demonstrating commitment to confronting misconduct allegations. Careful consideration of the basic questions outlined above will inspire confidence in the integrity and importance of the investigative process.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Robert L. Holzberg is a retired Connecticut Superior Court judge and leads the alternative dispute resolution practice at Pullman & Comley.

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