How independent should an independent investigator be? The cover story in this month’s American Bar Association Journal called “The Probers” takes a look at some of the highest profile independent investigations of recent years carried out not by private investigators, but by attorneys.
These are the mega-cases involving among others Penn State, the NCAA, the George Washington Bridge scandal, and soccer’s governing world body, FIFA. As famous as these names are, so are the law firms and lawyers involved: former FBI Director Louis Freeh, former Senator George Mitchell, DLA Piper, K&L Gates, and Ted Wells at Paul Weiss, Kirkland & Ellis, WilmerHale, and Jenner & Block.
Anyone who reads a daily newspaper has probably seen reference to at least one of these investigations, as well as the inevitable questions that arise once the reports are issued: how independent can a report be when the subject being investigated is paying the bills?
The answer may be “100%,” but two issues should always be up front for evaluation:
- Was the report as submitted to the client subject to editing by the client before being released?
- How much other work do the investigative lawyer and firm do for the client?
It’s easy to imagine an honest lawyer submitting a report to a client that the client doesn’t want to receive because it will result in public humiliation or open that client up to liability. If the report remains a privileged document that the client decides to bury, the lawyer’s job is done. We do these jobs not to get on television but to serve our clients as finders of fact.
But if the client decides to go public with a version of the report that may mischaracterize what the report concluded, would the lawyer be put in a position of having to correct a statement made by his client that he knows to be untrue? Rule 3.3 deals with candor before a tribunal. Happily, we have never been put in such a position.
As for the issue of conflicts, that too is something we have no worries about because investigations are all we do. In what may have been one of his last interviews, the ABA Journal article interviewed Hofstra University Law School ethics expert Monroe Freedman (1928-2015), who questioned “how independent these investigations can truly be.” A lawyer who has a history with a client before undertaking an independent investigation could well be in violation of Rule 1.7 of the ABA Model Rules.
“’If there’s a significant risk that the lawyer’s personal interest might be affected by what the lawyer is investigating, then you have a conflict at that point,’” said Freedman. Instead, “having neutral third parties perform independent investigations would be the ideal scenario.”