Our firm conducts a number of investigations. All of our lawyers and staff are trained in conducting investigations. We are often asked by witnesses, organizations and members of the public about our role so I thought it would be worthwhile to publish this article to explain what an independent investigation is and the role of an investigator.
While each investigation is different and is covered by the terms of our retainer letter and an organizations policies and procedures, our investigations tend to fall in to three different categories:
Solicitor-Client Privileged Investigation
In these investigations we are hired to be the legal counsel for an organization who is experiencing a problem with an employee, athlete, or someone else associated with the organization.
We are hired to both uncover the facts as to what occurred and also to give legal advice. In these investigations, we are very careful to explain to all participants that we are the lawyer for the organization, that our report will be privileged and accessible only to the organization and that we are not giving legal advice to the participants.
These investigations are often used by organizations to develop litigation strategy, determine a legal course of action or to potentially impose discipline over an employee. These investigations often do not arise out of an alleged breach of a code of conduct or statutory protection made by one employee or participant in an event against another.
Independent Investigations pursuant to Codes of Conduct, Policies or Legislation
Certain codes of conduct, policies and legislation requires independent investigations to be done regarding allegations and complaints. These allegations and complaints are typically made by one employee against another or by participants in the sport system. Often, the codes of conduct and policies outline in significant detail how investigations are to be conducted and who obtains a copy of the report. Most often, these investigations are not privileged as the investigation report is provided to the organization, the complainant and the respondent. They may still be confidential such that the report is not intended to be shared more broadly.
In these investigations it is our practice to not act as legal counsel to the organization or any of the parties. We believe that we cannot truly be acting independently when provide legal advice to the organization and while having fiduciary obligations to our client. We take our independent role in these matters extremely seriously and are guided by caselaw which provides that is clear that independent investigators should not also provide legal advice: "...it would be misleading... tell everyone that the investigation was independent if the investigator was actually acting as its counsel." (see Durham Regional Police Association v. Durham Regional Police Services Board, 2015 CanLII 60920).
We set out in our retainer letters that we are not retained to provide legal advice to anyone involved and we advise the parties of that fact. We also provide that outline in our final report. We also include in our retainer agreements that we will not be directed or unduly influenced over the course of our investigation by anyone associated with the organization who hires and pays us and that if there is not cooperation in that regard, we will resign. We have provided written reasons for our resignation when necessary.
Public Inquiries or Reviews
These investigations are the most transparent and independent. In these investigations, reviews or inquiries we are hired to conduct an investigation, write a report, make recommendations and there is a commitment from the outset that the report and recommendations will be made public.
These types of investigations are frequently arranged by governments of all levels, public institutions of all sorts and other organizations in times of crisis. They are the most transparent and the most costly. They also provide the least privacy for participants. Unless there is a statutory mechanism for ordering the inquiry or another way to require participation in it, there may be reluctance for individuals to voluntarily participate.
As with other independent investigations, the individual conducting the public inquiry or review is not acting as anyone's lawyer. The leader of the initiative sets their own process and rules and shares it with the participants and the public along with their terms of reference. Often these public matters are not meant to be disciplinary in nature against any individual person or organization - but rather a search for the truth and to obtain recommendations for improvement.
I hope this blog provided some clarity in terms of the type of work that our firm does and on the investigative process generally.
Erin Durant
Durant Barristers