We’re Under Investigation. What Now?
Hands down, the question I get asked most frequently by in-house counsel or senior management is: “We’re under investigation. The officer wants to interview some of our employees. How do we respond?”
When the subject of an investigation is an organization, this is never an easy question to answer. There are two reasons: (1) Employees have legal personality separate from the organization; and, (2) There are legal and practical limits on how much an organization can and should do to control an investigator’s access to employees.
Reason (1) creates a potential ethical minefield for external counsel retained by the organization and in-house counsel. Their client is the organization, and, subject to the circumstances, perhaps the one or two executives clothed with operational responsibility over the area of operations that is the focus of the investigation. Subject to the caveat below, participation by witnesses in investigations is consensual. By purporting to provide legal advice to employees as to whether they should consent to be interviewed, external and in-house counsel risk a conflict of interest. Counsel cannot provide advice to an employee on whether he should agree to be interviewed when the employee’s potential evidence may harm the organization’s interest.
This issue becomes more serious when the officer has advised that she intends to interview one or more employees under caution. A law enforcement officer is required to caution an individual before taking a statement if the officer believes that the individual may be a party to the offence under investigation and the officer intends that the statement be used against the individual’s interest in a subsequent prosecution. The risk of a conflict for counsel purporting to advise suspect employees is extremely high. In providing the statement, an employee may exculpate himself but inculpate the organization. If he stays silent, he may be charged as a party, along with the organization.
The issue becomes exigent if the organization is charged and one or more employees who external counsel advised are called to testify as a Crown witness. Now counsel is placed in the position of having to cross-examine her own clients. The conflict is real and potentially damaging to the organization client. Waivers signed by the witnesses acknowledging and waiving the conflict in the dynamic of an employer-employee relationship will seldom convince a court that counsel can continue. If it intends to proceed with a trial, the organization will have to retain new legal representation.
The best method for dealing with the risk of conflicts is to make available to employees independent legal advice (ILA). In unionized organizations, the bargaining unit will frequently step in to assist its members by providing ILA. In other organizations, policies are frequently in place governing under what circumstances employees will be provided access to ILA.
Reason (2) creates a similar but different risk. Every organization is entitled, and in some situations, under law, may be required, to control access to its workplace by non-employees. This includes law enforcement officers who attend without a search warrant or other court order authorizing their entry. But no organization has the right to instruct its employees to refuse interviews – even if they are approached on their personal time outside of the workplace. To provide that instruction exposes the organization to the risk of an obstruction or like charge which may be viewed by the courts as a charge more serious than the initial allegation that was the subject of the investigation. Advice by external or in-house counsel to employees to decline interview requests could attract the same risk.
There is a large practical benefit in an organization considering permitting interviews of properly advised employees within the workplace. If access to law enforcement is refused, that puts the officer in the position of attempting employee interviews off site. Absent the willingness of the interviewed employees to disclose to the organization the interview contents, the organization risks being blindsided by the course and conclusion of the investigation. However, if the organization is open to permitting interviews onsite, not only will it be seen as co-operative (always good), but it will also provide an opportunity for the organization to negotiate with the officer for conditions permitting it to track the course and content of the investigation. As an example, obtaining the officer’s consent to having an agent of the organization – such as an investigator retained by the organization – observe employee interviews.
The caveat: a few regulatory law enforcement agencies do not accept that interviews in the course of an investigation are consensual. The Ontario Ministry of Labour is notorious in unlawfully compelling employee interviews in the course of an investigation by threatening employers and employees with obstruction should they refuse the invitation. Proceed with caution. Retain counsel that knows the regulator and its practices.