Potential Pitfalls To Avoid As In-House Counsel
News of sexual abuse scandals on college campuses continues unabated. Just last week, disturbing allegations of potentially decades of abuse came to light against Richard Strauss, longtime team physician with Ohio State who killed himself in 2005. Strauss is believed to have worked at several other colleges, including Harvard and Rutgers, and is alleged to have abused male athletes across numerous different varsity sports teams. The story broke while Michigan State University continues to grapple with the fallout of another team doctor sexual abuse scandal, by the now-convicted Larry Nassar, and the University of Southern California faces suit by five women who claim to have been sexually abused by the school’s gynecologist during exams. Any hope that the Penn State/Jerry Sandusky scandal was an aberration has vanished.
Indeed, the Penn State scandal continues to make news for a somewhat surprising reason–the conduct of its former general counsel is now the subject of a state disciplinary proceeding for alleged attorney misconduct. Cynthia Baldwin, a former Pennsylvania Supreme Court Justice, served as Penn State’s first general counsel and occupied the seat when the Jerry Sandusky scandal broke. Believing she had no conflict of interest, she accompanied three of Penn State’s senior leaders, including its president and athletic director, to testify before a grand jury. Both leaders were later accused of covering up the Sandusky child sexual abuse and faced criminal charges. Baldwin testified against them, asserting that they had lied to her and hid documents. The state disciplinary board is now evaluating whether her conduct violated ethical rules governing attorneys, including whether she proceeded to represent the individuals and the university despite a conflict of interest, whether she engaged in conduct prejudicial to the administration of justice, and whether she violated the attorney-client privilege by testifying against her former clients.
And she is not alone. A plaintiffs’ attorney representing Nassar’s victims has pointedly criticized the conduct of MSU in-house attorney, Kristine Moore, who investigated Nassar’s conduct in 2014 and cleared him of any wrongdoing. The alleged ethical lapses included failing to consult with an independent physician to determine if Nassar’s conduct was medically appropriate and allegedly omitting certain of her findings, including that Nassar was “a liability to the school,” from the report provided to the complainant.
Earlier this year, attorneys retained to conduct an independent investigation for the University of Rochester into the conduct of Professor Florian Jaeger released a 200+ paged report into Jaeger’s alleged sexual harassment of students and other charges. While the report cleared the university of any wrongdoing, it criticized the university’s choice to enlist an in-house attorney who worked within the university’s Office Of Counsel to investigate the allegations. Because the university’s Office Of Counsel would necessarily need to defend any resulting claims against the university, the independent counsel concluded that relying on the same department to conduct the investigation raised “at least the perception of a conflict” even where the attorney who conducted the investigation was supposedly “walled off” from the rest of the legal team. The report recommended establishing a separate office, independent of the Office Of Counsel, to investigate claims of harassment against faculty. (Although, notably, the attorney criticized by Nassar’s victims did not work within MSU’s legal department at the time she conducted her investigation.) Ironically, the top-shelf law firm, who touted its $4.5 million fee for conducting the investigation as evidence of its thoroughness, got a rap on the knuckles too for inadvertently releasing victims’ names in an initial copy of its report, thereby violating their confidentiality expectations.
How To Avoid A Similar Fate
As administrative budgets and the potential for reputational harm move in opposite directions, in-house counsel seem to be in a no-win situation here. Hire an outside attorney in order to avoid the appearance of a conflict, and you get accused of wasting institutional resources (or worse yet, appearing ineffective). Conduct the investigation yourself and run the risk of Monday-morning quarterbacks criticizing your every decision. It’s enough to make an in-house lawyer want to go back to firm life.
If you find yourself in this quandary, it never hurts to review your state’s ethical rules before proceeding and plan your investigation accordingly. While each state’s rules may vary, the ABA’s Model Rules of Professional Conduct set up some good guardrails to keep you on track here. Consider some of these rules that frequently come up in the course of an internal investigation:
Rule 1.1: Competence. A lawyer must possess the requisite legal knowledge, skill and thoroughness the engagement requires. Do you know the area of law that governs your investigation or do you need to enlist additional resources to provide competent advice? In-house counsel are frequently expected to be a “jack of all trades.” But given the reputational risk and legal liability that can accompany allegations of serious misconduct, consulting with an expert may be advisable and keep costs down in the long run. And conversely, if you hire outside counsel because of their investigation skills but they have no experience in higher ed, be sure they can navigate their obligations under Title IX, FERPA, the Clery Act, and other school-specific laws.
Rule 1.3: Diligence. A lawyer must act with reasonable diligence and promptness. Given the competing priorities, do you have the time and resources to conduct an investigation promtply? An investigation that drags on–even for inadvertent reasons–can, in hindsight, be viewed as a “coverup” or unwillingness to face the music.
Rule 1.7: Conflicts of Interest. A lawyer cannot undertake a representation where there is a significant risk that his/her representation will be materially limited by, among other things, personal interests. Can you conduct an internal investigation, perhaps including the conduct of people you know and like, thoroughly and impartially? Does the investigation involve a situation where you provided legal advice (e.g., where you reviewed and approved a contract), which requires you to evaluate your own conduct? If so, give serious thought to recusing yourself even if you believe you can perform the task. The appearance of a self-interested conflict can be just as damning as an actual conflict.
Rule 1.13: Organization as a Client. A lawyer who represents an organization, including a college or university, owes a duty of loyalty to the organization–regardless of who actually signs the lawyer’s paycheck or conducts the lawyer’s review. Where I’ve seen lawyers trip over this rule more often than not is where they understand their client is the organization but the individuals they are talking to do not. Lawyers need to be abundantly clear when they sit down and talk to a witness about who their client is and where their duties lie. Review Upjohn Co. v. United States. Giving adequate “Upjohn warnings” will not only preserve the attorney-client privilege for your client’s benefit, but ensure that the witnesses you are interviewing understand you are not their personal attorney.
Rule 3.4: Fairness to Opposing Party and Counsel. Put simply, lawyers cannot destroy evidence, fabricate it, or advise a client to do so. If you reasonably believe that litigation is on the horizon (i.e., you consider your investigative notes “work product”) you have to go a step further–you have an affirmative obligation to preserve evidence through a “litigation hold.”
Rule 4.3: Dealing with Unrepresented Persons. A lawyer who represents a party (e.g., a university) cannot pretend to be disinterested when speaking with an unrepresented party who may be adverse to the client (e.g., a faculty member under investigation). The attorney cannot give others legal advice, except to secure their own legal counsel, where the attorney reasonably believes his/her client’s interest may be in conflict with a witness’. A lawyer has an affirmative obligation to clear up any misunderstanding about the lawyer’s role. That means the lawyer can’t give assurances that the lawyer is “on your side” in order to get information out of the witness, even where it would benefit the lawyer’s client.
Navigating the waters of an internal investigation can be very difficult even for experienced practitioners. Keeping these ethical rules in mind may make the task a little easier.
Written by Therese King Nohos