Who Should Investigate? HR, In-House Counsel, Outside Counsel, Another Third-Party, and What Each Choice Costs You

The default: a trained HR investigator

For most workplace complaints (i.e., interpersonal conflict, ordinary policy violations, most harassment allegations), a trained internal HR investigator is the right answer. The operative word is trained. An HR professional who investigates twice a year, with no protocol and no interviewing discipline, is not a cheaper version of a trained investigator; they are a liability with a title. If investigations are carried out by your HR team, invest in them. Have formal training, a written protocol, a uniform checklist, and ensure they can learn hands on alongside an experienced investigator.

Internal investigation stops being the right answer when some or all of the following is true: the accused outranks or evaluates the investigator; the allegations implicate HR; the allegations implicate senior leaders and/or legal; litigation looks probable from day one; or the matter carries board-level, regulatory, or public visibility. In those cases, the very competence of your HR team cannot cure the structural problem: the investigator’s independence will not be believed. The belief in the investigator is the currency this entire exercise trades in.

The trap: in-house counsel as the investigator

When the complaint is serious, the instinct is to hand it to the legal department. Resist the instinct or at least interrogate it. When a lawyer acts as an investigator rather than as legal counsel, courts frequently treat the investigative work as business activity, not legal advice, and the privilege you assumed was covering the file evaporates. Worse, the lawyer who conducted the interviews becomes a fact witness to what was said to them, which can disqualify them from advising on the resulting dispute and puts their notes and memory at issue. The better structure, where in-house counsel is to be involved at all, is counsel directing an investigation conducted by someone else. The lawyer can help frame the scope, receive the findings, and give legal advice with the roles documented in writing at the outset. Our next installment takes up privilege in full; but for now, this is the rule of thumb: the person who asks the questions should generally not be the person you are counting on to be your lawyer in the matter.

Outside counsel and other third-party investigators

Outside counsel brings independence, experience, and—when properly engaged to provide legal advice rather than merely to find facts—the strongest privilege posture available. The costs are real; however, there’s an expense, some loss of institutional context, and optics that signal seriousness (which cuts both ways as sometimes signaling seriousness is precisely the point). Non-lawyer third-party investigation firms and lawyers retained as factfinders, not counsel, are a middle path with some drawbacks. Reports prepared by a third party, even when the investigator is a lawyer, are often not privileged and those involved should assume what they write will be produced.

What can employers do now to improve their selection criteria and considerations?

1. Build a triage rule into your intake protocol. Consider the seniority of the accused, the nature of the allegations, and the probability of litigation. High on either axis moves the matter towards external handling rather than internal.
2. If your in-house lawyers currently conduct investigations, consider whether the business accepts the risk or whether an alternative structure better suits your needs.
3. Retain and maintain relationships with external investigators before you need them. Knowing who to call when the complaint comes in reduces the chance of unnecessary delay.
4. Train and invest in your internal investigators and keep a roster of possible candidates. The credibility of the organization’s whole program rides on the person across the interview table.

Next installment: privilege and work product consequences related to your selection of the interviewer. Is the investigation and/or report protected? To read the previous installment, click here.