Chase Your Dreams!

Tamanie Worth ItToday’s blog isn’t about employment law or workplace conflict, but rather about the importance of chasing our dreams.

We all have a hobby or activity that makes us feel great – something that makes us feel like we can soar.

Too often as we get older we let life get in the way of our favorite hobbies and activities.

I’m thrilled to share this awesome music video just released by my friend who is a songwriter and singer. At 50+, she’s decided to go for it and chase her dreams!

And, yep … that’s me in the turquoise cowboy hat dancing. I too decided to go for it – can now check “be a backup dancer in a music video” off my bucket list …

Enjoy the video and go chase your dreams!  And, if you know anyone in the music industry please share the video and help my friend make her dream a reality!

Know Your Role: Title IX Coordinators

Courtney Bullard, Esq.

I’m honored to share this important guest blog with guidance for Title IX Coordinators by my Workplace Investigations Group colleague, Courtney Bullard, Esq.

Courtney is located in Chattanooga, TN and has practiced employment law for over 15 years, representing hundreds of private and public entities in harassment and discrimination charges and litigation. For 8 years, she served as a University system attorney where she advised on employment and Title IX investigations. Courtney regularly counsels employers on employment-law related matters and institutions in Title IX compliance. She specializes in Title IX investigations for private and public institutions. Courtney received her undergraduate degree from Indiana University and earned her J.D. from the University of Memphis School of Law where she served as Comments Editor of the Law Review.

Courtney can be contacted directly at chb@icslawyer.com or 423-757-0448.

Know Your Role – Title IX Coordinators

Guest Blog by Courtney Bullard, Esq.

Advocate, Educate, Collaborate

Your supervisor comes to you, perhaps even the president of your university, and informs you that in addition to your duties as the HR director, or a faculty member, or the Director of Office of Equity and Diversity, you will now serve as the Title IX Coordinator for the campus.  You are whisked off to an intensive training where it is like drinking from a compliance fire hose.  You learn about survivors, predators, complaint intake, interviews, training, investigations and statistics.  You learn about the Office of Civil Rights, Title IX, VAWA, and the Campus SaVe Act.  You learn about what your institution should be doing to comply with all of these federal laws.

You walk away thinking one or more of the following:

  1. You have 3 legal pads full of notes and lists of items that you are almost certain your institution is not doing and therefore your institution is not in compliance and therefore you are crossing your fingers and toes that this year is not the year your campus lands itself in a federal investigation, or worse, litigation;
  2. You have no idea where to begin but know that you have to begin somewhere (look for my article “Low Hanging Fruit”);
  3. Even if you fulfilled all of the items on your newly made list, there is no way your campus will ever reach institutional compliance.

Sound familiar?

The first step in adapting to your new responsibilities is simple in theory but often difficult in day to day execution and that is to know your role in institutional compliance.   The reality is, an enormous responsibility now rests at your feet.  Not only do you have a responsibility to the institution but you also have a responsibility to the students on your campus, especially those involved in a complaint, because their lives will be forever impacted.  I do not say this to scare you, but to ensure you understand the gravity and the importance of your position.

As you proceed in your new position, there are some tenants that will help you stay focused on your role and responsibilities as Title IX Coordinator.  These three tenants will provide you with a foundation to build on as you enter the compliance world, and are applicable to both novice Title IX Coordinators assuming multiple roles and those who are seasoned, dedicated, Title IX Coordinators.

Advocate:  First and foremost, you are an advocate for institutional compliance and this can become an unpopular position with your colleagues.  In that role, there will be times when there is the perception that you are advocating for a specific party involved in an allegation.  If, for example, you recommend interim measures that assist a complainant but inconvenience a respondent you may be perceived as being pro-complainant.  There will be times when you are mandating training in order to effectuate compliance and you encounter resistance from a division or department. There may be times where you have to recommend something to a superior that you know will be controversial or ignite conflict.  There will often be times when you are seen as making a process more difficult or cumbersome.  Remind yourself that your role is to advocate for and protect the institution at large, no matter how unpopular that position may be.

Educate:  If OCR comes on to your campus for an investigation, the first stop will be you. OCR expects you to have your finger on your campus’ compliance pulse.  Educate yourself on what is occurring on your campus by way of compliance.  Investigate the nooks and crannies of your campus that are not always seen and celebrated, but that you may discover are already doing something in furtherance of compliance such as training, for example.  In addition to familiarizing yourself with your campus, take opportunities to attend training whenever you can.  This will prove difficult in the midst of an already hectic schedule, but it is not only important to hone your craft but to provide you with an opportunity to commiserate with colleagues so that you know you are not alone.  Finally, educate yourself on what is going on in your region and also across the country.  Often the mistakes of other campuses can serve as learning opportunities that you can utilize on your own campus if a similar situation arises or as a tabletop exercise for your Title IX team.

Collaborate.  Set the tone early that your mission is to collaborate with colleagues in order to protect the institution and ultimately the parties involved in an investigation.  Take opportunities to get to know the colleagues that may be involved in an investigation so that you have a relationship before the stress of a report of an allegation or an investigation ensues.   There will be tension, there will be disagreement, but a well laid foundation of trust and collaboration will go a long way towards reaching a resolution that ultimately impacts your ability to do your job and your campus’ ability to comply with the law.  At the end of the day, your recommendations (hopefully with the assistance of experienced legal counsel during difficult cases) reign supreme over the agendas and missions of the divisions on your campus with regards to matters affecting Title IX compliance. The best way, however, to ensure that your recommendations are listened to and utilized is through the power of collaboration early on in the process.

Although this post is geared to the novice Title IX Coordinator, these tenants are good reminders for the seasoned Coordinator as well.  When you find yourself in a sticky situation, and most of them are, always take a step back and begin with the basics – Advocate, Educate and Collaborate.

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workplace investigation training

Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial workplace and Title IX investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training this week in Miami, Florida.

Join Me in Miami for Investigation Training!

workplace investigation training
It’s cold here in Atlanta and I’m excited to head to the beaches and warmer weather of Miami next week.  I’d love it if you joined me!

On Wednesday and Thursday (Feb. 17th and 18th) I’ll be teaching a two-day interactive training on how to conduct effective workplace investigations that will withstand scrutiny.  This course is specifically designed for HR professionals, EEO investigators, Title IX investigators, in-house counsel and other compliance professionals with responsibility for conducting impartial internal investigations.

This is my favorite course to teach and is a highly interactive class with exercises designed to put concepts into action in a mock-investigation setting where immediate feedback, tips, and discussion can occur in a productive and meaningful setting. Each attendee receives a manual that includes forms, case law, and other information and resources.

Upon request, HRCI credits will be applied for (this course has been previously approved over the past three years). After successful completion of the course, a certificate is issued to the registrant.

To view the full agenda and register, click here: http://www.internal-investigations.com/training-agendas-registration/

 

Caltech President & Provost Use Title IX Investigation to Drive Change

Kudos to CaltechKudos to Caltech’s President and Provost for their strong leadership in the wake of a Title IX investigation finding that a tenured professor had engaged in “unambiguous gender-based harassment” of two female graduate students.

Instead of hiding behind the typical curtain of confidentiality that shrouds Title IX investigations, the President and Provost issued a memorandum to the entire Caltech community stating that

[a]lthough the details [of the Title IX investigation] must remain confidential, we nevertheless feel that this situation is sufficiently important that enough information must be provided to permit our community to evaluate the situation and to contemplate the changes required to minimize the chances of anything like it happening again.

The memo went on to explain that following complaints by two graduate students that a faculty member had harassed them that a “comprehensive investigation” had been conducted by faculty committee who then reported to the provost. According to the memo, the faculty committee concluded and the provost concurred that “there was unambiguous gender-based harassment of both graduate students by the faculty member.”

Without identifying the names of the graduate students or the faculty member, the memo then outlined the disciplinary and remedial actions it had taken in response to the finding:

The faculty member was placed on unpaid leave for a full academic year, and he is restricted from coming on campus. Importantly, in order to make sure that the two students involved and other students are protected against continuation or new instances of such behavior – while also endeavoring to ensure that their academic progress is not adversely affected – communications between the faculty member and members of his group are being carefully monitored. In addition to these professional and financial sanctions, the suspended faculty member must undergo professional coaching and training in how to mentor students before returning to campus. A demonstrable change in behavior and mentoring approach will be required before unmonitored interactions with students can resume. Structural changes in the division’s advising approach are being put in place to ensure that students are properly and effectively mentored.

According to the memo, the faculty member appeal of the disciplinary actions was denied.

But …. The President and Provost didn’t stop there. They then used this Title IX investigation to help drive cultural change across the Caltech community, announcing three campus-wide initiatives as well as changes being made in every division across the university.

In reading the Caltech President and Provost’s memo, I couldn’t help but contrast their leadership in the wake of the allegations of harassment to that of the University of Missouri President’s self-proclaimed “inaction” in response to racially motivated incidents on campus.

Not only did Caltech’s leadership step up to the plate and promptly investigate and address the allegations of harassment as required by Title IX, but they seized the situation to help drive change across the university.

Kudos Caltech! Kudos!

The full Caltech memo can be read here.

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workplace investigations groupAbout the author:  Lorene Schaefer, Esq. is an attorney who works as a mediator and impartial workplace and Title IX investigator and also serves as the President of Workplace Investigations Group.  Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial workplace and Title IX investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.

Employment Law Blog Carnival: A Festival of Lessons

Festival of Lessons Employment Law Blog Carnival‘Tis the season — celebrations, festivals and observations:  Hanukka, Boxing Day, Omisoka, St. Lucia Day, Ramadan, Saturnalia, Bodhi Day, Fiesta of Our Lady of Guadalupe, Yule, Kwanzaa, Three Kings Day, Eid al-Fitr, Saint Nicholas Day, Christmas.

Not to be outdone, my fellow employment law bloggers and I have joined right in with our own “Festival of Lessons” for this December edition of the Employment Law Blog Carnival.  A special thanks to all the great bloggers who contributed this month and for allowing me to host this esteemed group.

Now let the Festival of Lessons begin!!

Lesson of Thankfulness

In too many workplaces, HR professionals work tirelessly with little thanks for their efforts. Vanessa Goddard is out to change that with this poem of holiday thanks:  ‘Twas the Holiday Season:  Here We Go Again

Lesson on Internal Investigations

Higher education and sports teams have been in the headlines recently for their poor handling on internal investigations into claims of harassment and discrimination. Per Jennifer Keaton, the University of Minnesota is an exception and she highlights in her lesson on internal investigations Three Things the University Did Right that Most Employers do Wrong.

Lesson of Generosity

Yes, there is such a thing as being too generous — at least in the workplace. As Sharlyn Lauby points out in her lesson on generosity, sometimes engaging in generosity can generate unintended legal risks — Handling a Negative Sick Pay Balance.

Lesson on Anti-Muslim Rants

Given the terrorist attacks in Paris and San Bernardino, Calif., I think we can expect that in at least some workplaces someone is going to go on an anti-muslim rant. Donna Ballman is exactly right in her important lesson that unless the employer “shut[s] them down speedy quick,” Those Anti-Muslim Rants Are Going To Get You Sued.

Lesson on Harassment

Many employees mistakenly believe that any negative interaction constitutes illegal harassment.  Not the case. Click here to read Stuart Rudner’s lesson on why Managing is Not Harassment.

Lesson on Holiday Pay

The holidays are a hectic shopping period with extended hours and Doug Hass rightfully reminds employers that this is also a time when retailers need to be especially mindful of their obligations under the FLSA and state and local laws, especially in light of the Department of Labors Recent Outreach to Retailers’ Employees.

Lesson on Holiday Parties

There’s an old joke among employment lawyers that we get some of our best cases (read high legal fees) as a result of holiday parties run amok. Be sure to read Andrea Paris’ Holiday Party Checklist for Employers to learn your lessons now and avoid being that employer.

Lesson on Social Media

Thanks to Eric B. Meyer for this reminder that Yes, Employees Can Fight Workplace Harassment with Social Media. In this important lesson for employers, he urges them to not make social media a measure of first resort for your employees, but rather to provide multiple direct and effective methods for employees to address their concerns and improve the workplace.

Lesson on Weapons at Work

Given the instances of workplace violence in the news, many employers are considering banning weapons at work. Janette Levey Frisch warns that may or may not be possible depending on state and local laws in her blog Can You Ban Weapons in the Workplace?

Lesson on National Origin Discrimination

Among Title VII’s less-used provisions is its prohibition of discrimination on the basis of “national origin” and as Robert Fitzpatrick rightly points a plethora of open issues remain with these types of discrimination cases. Click here to read Fitzpatrick’s analysis of a recent New Mexico case where the Court Recognized a Claim of National Origin Discrimination Based on Non-Hispanic Status and Rejected the Heightened Proof Standard for Non-Minority Claims.

Lesson on Job Descriptions

Too many employers either don’t have job descriptions or have poorly written job descriptions that are creating undue legal risk. The good news for readers of this blog – Bill Goren has some great lessons for us all in What’s Wrong with This Job Description? Let Me Count the Ways.

Lesson on Alcoholism and Disability

By now, most everyone in the HR profession has been challenged with managing the legal risks associated with disciplining or terminating an alcoholic as alcoholism is considered a disability under the Americans with Disability Act as well as most, if not all, state disability laws. Robin Shea has some great lessons for us all in her take on the Trojan Travails and Coach Sarkisian’s Alcoholism-Discrimination Lawsuit Against USC.

Lesson on Accommodating Hearing Loss

According to a 2011 study led by researchers from Johns Hopkins, nearly 20% of Americans 12 and older have hearing loss so severe that it may make communication difficult.  Given this large percentage, most employers will at some point be faced with a duty to accommodate an employee or applicant who has, due to illness or age, acquired hearing related problems. The good news for readers of this blog is that Mike Haberman has some excellent lessons and suggestions for Accommodating the “Hard of Hearing” Employee.

 

 

 

Lawyers React to University of Minnesota Investigation Report – First in Series

Lawyers React to University of Minnesota Investigation ReportThe Board of Regents for the University of Minnesota has made headlines relating to the recent conclusion of a significant investigation into its Athletics Department. Unlike many of its peers, however, the Board received fairly good news about sexual misconduct in its workplace. The report, which can be found here, offers many learning opportunities for managing “blind spots” in schools and in workplaces.

Today, I kick-off a blog series featuring the reactions of lawyers to the 743 page investigation report with a guest blog from Jennifer Keaton, Esq., an attorney who is regularly retained by employers as Investigation Counsel and is the Vice President of Workplace Investigations Group.

Slide1

How the University handled anonymous complaints of sexual harassment and/or misconduct highlights a bright spot for the University. Here are three things they did right…which most employers do wrong!

Thing One: Pursue It!

The University has multiple ways that individuals can report suspected misconduct, including a means to make anonymous complaints or reports of concerns. Many employers and schools have these options, too. The University here did something with those anonymous complaints that others don’t: they pursue the complaint!

For each anonymous complaint, the Report here explains when it was received, how detailed the complaint was, and how they actively pursued more information. Many employers and schools simply discard anonymous reports or give short shrift to their veracity before taking active steps and documenting those steps to gain more information. Skipping the “pursuit of knowledge” not only is cowardly, but it also contributes to the potential for an ever-growing blind spot for the organization.

The external report’s treatment of these anonymous complaints (pages 69 to74) reads like a sheet of music. The investigators document when the complaint was received, a general characterization of the concerns included in it, and then what steps (plural!) the investigators pursued to find out more. These steps included:

  • Attempting to contact the anonymous reporter with questions for more information through the reporting system;
  • Attempting to contact the anonymous reporter with an invitation to contact specific individuals more directly;
  • Following up with individuals who might have some knowledge of the allegations made anonymously (for example, an employee who worked in close proximity to the place an event was alleged to have occurred)
  • Following up with entities and individuals outside of the school/workplace – including former students, prior employers, etc.
  • Consult/Implement a “Climate Survey” that is relevant to generalized or “environmental” concerns.

Thing Two: Document It!

A common refrain from some employers regarding anonymous complaints is that they are a waste of time. The Report here shows the other side of that coin: the time spent may be minimal and priceless!

In the Report, the processing of anonymous complaints was well documented. In those instances where the efforts resulted in little or no further information that could be pursued, that result was noted. And, the entire dispatch of the matter was captured in three short paragraphs.

So, in documenting the efforts and the results, which in some instances was confirming that the complaint was a dead-end, the Report demonstrated quickly and very effectively something that is priceless: Integrity.

By documenting even the dead-end investigations, the University not only demonstrated concern, but demonstrated actions behind the words. This also demonstrated an organization that is not fearful of “bad news,” but rather an organization that actively wants to be the FIRST to know and the FIRST to resolve problems in its midst. That kind of responsiveness also bolsters the credibility of the process itself, not just its integrity.

Thing Three: Even-Handedness

In this Report, the results include good news and bad news. The tone of the delivery of both kinds of news, however, is the same. Objective. Direct. Matter-of-Fact. Why is this important?

While some may call this “even-handed,” what it really demonstrates is that the people behind the investigation are impartial. There is no obvious “shading” or “sugar-coating” in the report of results. It reads like an IKEA instructions manual. The wrongs are obvious. The rights are obvious. And, the “needs improvements” are obvious without fanfare.

For the University, the report will have a life of its own for years to come. It is tangible proof to future “whistleblowers,” victims, and shareholders of what they can expect if they raise their hand. It should encourage individuals within the community to have trust in the process and to USE the process in the future.

Well done, Investigation Counsel (Karen Schanfield, Esq. and Joseph Dixon, Esq.), well done.

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workplace investigations groupWorkplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.

Good Will Hunting and Workplace Investigations: Vigilance Against Bias

Mark Flynn, Esq., SPHRToday’s thought-provoking guest blog is from my colleague in Workplace Investigations Group, Mark Flynn, Esq., SPHR.  Mark is an employment attorney in Denver, Colorado and founder of Employment Matters LLC and Flynn Investigations Group (“EMFIG”). Mark started EMFIG to continue his specialization in conducting workplace investigations and providing counseling and training seminars on employment matters. He views compliance and conflict resolution as fundamental to a preventive law approach to promote effective, prosperous workplace and school environments. Previously, Mark worked at a 3,000-member employers association for over 18 years, where he developed and managed a team of investigators performing over 100 investigations annually.

Good Will Hunting and Workplace Investigations:  Vigilance Against Bias

by Mark Flynn, Esq., SPHR

I like to ask the “favorite movie” question and Good Will Hunting is a popular pick in my experience. To Good Will Hunting fans I sometimes present a “did you notice” question.

It starts with recollection of a favorite scene in the movie – when Will (Matt Damon) steps into Chuck’s (Ben Affleck’s) conversation at a bar with a Harvard Grad student intent on sabotaging Chuck’s attempt to meet two “Harvard hunnies” (Minnie Driver and friend). Will proceeds to dress him down as a parrot of published works on American history without an original thought of his own. Juxtapose that scene with Sean (Robin Williams) and Will’s “Taster’s Choice moment between guys” on a bench overlooking a pond. Will aggravates Sean to violence in their previous meeting, but now Sean explains finding calm after realizing that Will doesn’t know what he is talking about, even if Will’s genius enables his command of any subject still short of personal experience: “I can’t learn anything from you that I can’t read in a [expletive] book.” It’s the same valid criticism that Will levels at the Harvard Grad student and provides a lesson in humility.

Discovering the hypocrisy of our own thinking or behavior can make for profound revelation. Ideally, it inspires responsible cautiousness and self-examination. The life lesson is a great tool for workplace and school investigators – and managers and executives too.

Conducting workplace investigations demands humility more than self-assurance. The most effective and reliable investigators perceive themselves small rather than big.

Starting from a stance of “I don’t know” helps avoid assumptions and drives the initial, primary goal of hearing each side of the story before reaching conclusions. From there, acknowledge your susceptibility to biases. Biases derive from implicit reliance on stereotypes born from individual life experiences, environment, and culture. Every point of view is a view from a point and no person escapes the human condition. Any absolute denial of personal prejudice, conscious or unconscious, is at best unpersuasive and at worst dishonest.

The on-going study of bias is fascinating. The multiple forms of cognitive bias, like Confirmation Bias and Halo Effect, as well as Implicit Association Tests and Heuristics are engrossing, even to laymen – at least this layman. The reliability of implicit bias evidence in employment discrimination litigation is far from settled with strong opinions on both sides of the issue, and separate legal-eagle debate over the centrality of causation versus discriminatory intent for disparate treatment claims. In any case, the good news is that social science suggests that individuals can control even implicit biases with various forms of conscious effort – including articulating opinions or decisions in writing (my personal favorite). Self-awareness and recognition of our essential subjectivity supports vigilance against bias in the workplace, investigations, and in life.

 

 

Nominated for 2015 Best Legal Blog — Now I Need Your Vote!

If you enjoy this blog, I’m hoping to call in a favor — it will take less than 10 seconds I promise.

After lovingly writing this blog for 3 years, I’m thrilled to share that it has been selected by the Expert Institute as a nominee for 2015 Best Legal Blog!

Now though I need your vote as the winner will be selected by the readers.

So, can you please visit this page and click the “thumbs up” button to register your vote?

Thanks in advance for your vote!

Workplace Investigator Sindy Warren Invited to Present to EEOC Task Force

Sindy Warren, Workplace InvestigatorEarlier this year, the EEOC announced the formation of the Select Task Force on the Study of Harassment in the Workplace.  Its purpose is to examine the problem of workplace harassment in all of its forms and look for ways by which it might be prevented and addressed.

The Task Force is being co-chaired by EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic and is comprised of 16 members from around the country, including representatives of academia and social science; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor.

As President of Workplace Investigations Group (“WIG”), I am thrilled to announce that WIG member Sindy Warren, Esq. has been invited to present at an upcoming public hearing that is being held by the Task Force.  Membership in WIG is limited to attorneys with 10+ years of employment law experience and who meet WIG’s Expert Qualification Criteria.  They are all also committed to meeting the Responsibilities of WIG Expert Investigators.

Sindy Warren, Esq. is the principal for Warren & Associates in Cleveland, Ohio and conducts workplace investigations, creates and presents training programs on a wide variety of employment law and human resources issues, and acts as an as-needed human resources department for private and public employers, both large and small, throughout Northeast Ohio and nationally.  She has investigated many employee complaints, including complaints of harassment, discrimination, retaliation, fraud and other workplace misconduct. The EEOC sought Sindy out based on her years of experience investigating issues of harassment in the workplace.

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workplace investigations groupWorkplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.

Rookie Mistake: NFL Ignored Conflict of Interest in Deflategate

Rookie Mistake by NFLThe NFL’s decision to use the same law firm to both conduct the “independent” investigation in Deflategate and to advocate for the NFL in the subsequent lawsuit was a rookie mistake.

In fact, I think that the judge’s decision today overturning the 4-game suspension can be traced directly back to that rookie mistake.  Why?  Because that key decision created a conflict of interest at the law firm: Was the law firm’s role one of independence or one of advocacy?  You can’t be both, at least as a lawyer.

Here’s how I explained the conflict of interest in my blog of July 29th:

“Here, it seems clear, at least to this attorney, that the NFL has placed the adequacy, reasonableness and independence of the Wells investigation directly at issue. As such, Brady and the NFL Players Association should have been provided with production of the contents of the Wells investigation file, including his communications to/from witnesses interviewed as well as to/from the NFL and others consulted during the investigation process. It is only by allowing the opportunity to review the full investigation file that they can evaluate the adequacy, reasonableness and independence of the Wells investigation.”

The federal judge who heard the lawsuit agreed with me, noting that the firm’s “role in this case seems to have “changed” from “independent” investigators to NFL’s retained counsel at the arbitral hearing.”  The judge was concerned that

“[a]mong other things, this change is roles may have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other investigative information which was not available to Brady.”

Ya think?

This begs the question, of course, why would the NFL and its law firm (Paul, Weiss – a prestigious and large firm) make such a rookie mistake? One word:

Money

First, the law firm would lose out on what I can only suspect were significant legal fees associated with representing the NFL during the arbitration hearing and subsequent legal appeal if they referred the NFL to another law firm to handle those matters. These legal fees would be in addition to the reported $3+ million in fees paid to the firm to conduct the “independent” investigation. Second, law firms hate to refer their clients to other law firms because there is always the risk that the client will like the other firm better and they’ll lose the client on future matters.

As Paul Weiss – the law firm at issue here – scrapes itself off the floor after being handed such a public loss, they may also be well served to call their malpractice carrier and perhaps brace for ethics complaints against several of their attorneys.  Although the New York Lawyer’s Code of Professional Responsibility does not appear to require the disqualification of the entire Paul Weiss law firm because one of its partners (Ted Wells) was a witness in the litigation, it does seem that Paul Weiss would have been, at minimum, ethically bound to advise the NFL of the disadvantages of retaining the firm to conduct both the independent investigation and then serve as its litigation counsel.  The question, of course, is whether the firm did advise the NFL of those potential disadvantages and the NFL decided to use the same firm despite those disadvantages.

Here’s my bottom line for lawyers and law firms asked to serve as both independent investigation counsel and litigation counsel:  Just say no.

As this case clearly illustrates, the disadvantages to your client are significant.  Instead, encourage your clients to retain either separate litigation or investigation counsel and consider consulting the national directory of experienced and well-qualified attorney investigators that is readily available at  Workplace Investigations Group.  

Addendum:  As author Sue Reisinger pointed out in her article “Judge Knocks Air Out of NFL’s Deflategate Probe,” the question of “what is an independent investigation was also at issue in the General Motors Co. faulty ignition switch scandal last year, when GM hired a law firm that had been traditionally close to the company to conduct its internal probe. GM also named its then-general counsel Michael Millikin as co-lead investigator, even though Millikin’s legal department was at the heart of the scandal.”