Yesterday’s press conference by Ted Wells defending the independence of his internal investigation should serve as a reminder of the importance of selecting an investigator who will not only be independent and impartial but also be perceived as independent and impartial.
Wells and his law firm Paul Weiss had been retained by the NFL earlier this year to conduct an independent and impartial investigation into allegations that the Patriots intentionally deflated footballs in the AFC Championship Game against the Colts.
As an organization faced with the need to retain an attorney to conduct an impartial internal investigation into an allegation of misconduct, the NFL was faced with a balancing act.
On the one hand, as regular legal counsel to the NFL, Ted Wells was familiar with the NFL. Wells had done prior investigations for the NFL and together with his colleagues at the law firm of Paul Weiss is defending the NFL in a lawsuit brought by former NFL players alleging the league deliberately and fraudulently ignored the risks of neurological damage caused by repeated blows to the head that the players suffered.
As such, Wells was a good candidate for the investigation because he could more easily navigate the organization resulting presumably in an ability to more quickly conduct and conclude the investigation.
On the other hand, the existing relationship between Ted Wells and his law firm would create at least the appearance of a potential conflict of interest, i.e. did Wells make close calls in favor of the NFL in order to keep his current work with the NFL and curry favor for future work?
Here are my two cents: As a general matter, the higher the stakes of the investigation the more important it is to avoid even the appearance of a conflict of interest. If an investigation is more routine in nature – think employment claims of harassment or discrimination or a potential regulatory compliance violation — then using an attorney at an organization’s regular law firm may be appropriate.
But, where – as was the case with the NFL investigation of the Patriots and Tom Brady – the stakes are high and everyone knows the report will be subject to significant media and legal scrutiny why create even the perception of a conflict of interest by selecting an attorney at the NFL’s regular law firm.
There are any number of well-qualified attorneys in the United States available to conduct an independent investigation of this type. Given the stakes, one has to ask whether the NFL would have been better served to have selected one of those other well-qualified attorneys to conduct this investigation.
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