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Jan 2017
09
January 09, 2017

Attorney Spotlight: Andrea Bernard on Internal Investigations


Andrea is a litigator and serves as the firm’s General Counsel. Andrea has been recognized in Best Lawyers in America, Leading Lawyers in America and as Lawyer of the Year by Michigan Lawyers Weekly

Q. You grew up in a very large family. What did you learn? 
Growing up number eight in a family of 11 children helped form my personality. My parents had a policy to not interfere in disputes among the kids. I learned early how to assert myself, and how to defend myself. We solved a few of our disputes with fist fights, but more often with diplomacy. I quickly learned how to hold my own in either forum. 

Q. You have been called on by clients to help with internal investigations. What kinds of investigations have you done? 
I have conducted investigations involving allegations of sex or religion harassment. I have also conducted Title IX investigations involving allegations of sexual misconduct. 

Q. What are some of the “must dos” of an internal investigation? 
Ask the complainant to write down the complaint. After you interview the complainant, prepare a memo including what you learned and give the complainant an opportunity to review it and mark any changes. Focus on the facts and ask open-ended questions: who, what, when, where, why, how, etc. Reaffirm the company’s no-retaliation policy with every witness, including the complainant, so that everyone knows (a) they may not retaliate against anyone; and (b) there will be no repercussions to them for their participation. Genuinely thank every witness for their assistance. Create only one final report of the investigation and of each of your witness interviews. 

Q. What are some of the “don’ts” of an internal investigation? 
Don’t prejudge the findings! Don’t promise someone what the outcome will be. Don’t promise someone that you will keep their comments “strictly confidential” or “off the record.” Don’t threaten any participants. Don’t allow anyone to be retaliated against because of their participation in the investigation. And don’t conduct your own investigation if the complainant has already told you (s)he has a lawyer. Call your lawyer at that point.

Q. How do you keep an internal investigation from suffering “mission creep,” where the investigation just never seems to end? 
Ask the complainant, “Who else witnessed that?” “Is there anyone you think I need to interview as part of my investigation?” and “Do you have any documents or other things you think I should review as part of my investigation?” 

Q. Can internal politics come into play in an investigation? How do you manage them? 
Internal politics are often the reason why there is an investigation! Focus on the facts and keep it objective. If someone gives you subjective information, go back and probe for why they reached their conclusion. Human beings are by nature very self-interested. So you need to make people understand why it is in their own self-interest to facilitate the investigation.

Q. Are there special rules the investigator must consider? 
Absolutely. Both the EEOC and NLRB have special rules about employee interrogations. So the investigator needs to know the rules before starting. 

Q. What role can legal counsel play in an investigation? 
If your investigation relates to an internal compliance matter that you hope will never see the light of day, then consider having an attorney conduct the investigation. Certain privileges and protections apply to an attorney’s discussions with a client. 

Q. Any final words of wisdom? 
Be careful out there.

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