Attorneys and LEOs as investigators
When serious allegations surface and you want investigators with experience, it’s common to turn to attorneys and former law enforcement. As a former prosecutor and currenty attorney in private practice, I obviously think that instinct is a good one. But you need to consider the distinct strengths and limitations that each profession brings to investigations. Rather than just assuming that they have all the skills you need, look closely to be sure a particular attorney or former LEO is a good match to your organization and its needs.
Former Law Enforcement Officers
Many good private investigators come from law enforcement backgrounds. A former LEO often excels at gathering crucial evidence, documenting findings, and interviewing potential witnesses who may be reluctant or deceptive. Their law enforcement background typically includes experience with:
– Evidence collection and chain of custody procedures
– Interviewing techniques honed through thousands of witness interactions
– Understanding how legal cases are built and what courts require
– Navigating complex situations involving multiple witness accounts
– Documenting witness statements for potential legal proceedings
For investigations involving potential criminal conduct, previous law enforcement experience can be invaluable. However, that previous experience can also create some serious limitations.
Where law enforcement background creates challenges:
Criminal investigation training emphasizes finding guilty parties in criminal cases. LEOs generally find their suspect pretty early in the case and then work to build a case against that person for a judge or jury. Independent investigations require different skills to ensure constant objectivity throughout the investigation, as well as creating safe environments where potential witnesses voluntarily share essential information.
The interview techniques effective for extracting confessions from suspects don’t translate well to interviewing employees and other witnesses about organizational concerns. A police officer’s “command presence” useful in criminal contexts can intimidate witnesses in workplace settings where you need voluntary cooperation and honest witness accounts.
Questions to ask former law enforcement investigators:
“How has your approach to interview witnesses evolved from your law enforcement background to independent investigations?”
“What additional training have you completed beyond your previous law enforcement experience to prepare for this field of private investigations?”
“Can you describe how investigating matters involving an organization such as ours differs from criminal cases you handled as a police officer?”
”What steps do you take to avoid deciding early in the investigation whether you have your perpetrator??
Good former LEOs will articulate how they’ve adapted their skills. Those who simply transplant criminal investigation approaches to workplace contexts may struggle with the nuanced type of information that independent investigations require.
Attorneys Providing Private Investigation Services
Attorneys offering investigative services bring legal expertise that matters for certain kinds of cases. They understand how findings might be scrutinized in legal cases and what documentation standards matter in different contexts. More important, attorneys know how to structure investigations to preserve attorney-client privilege when appropriate.
What attorney-investigators offer:
Legal training helps attorneys recognize when conduct crosses legal lines, understand evidentiary standards, and know how opposing legal teams will challenge findings. For investigations with high litigation risk or complex legal questions, attorney-investigators provide valuable context that helps organizations understand potential legal exposure from the results of the investigation alongside factual findings.
When you engage an attorney for investigative work within an attorney-client relationship, communications may be protected by attorney-client privilege. This can shield sensitive information that the attorney and legal team discover from discovery in subsequent legal cases, though it also limits transparency.
Where attorney backgrounds may fall short:
Legal training emphasizes adversarial thinking rather than neutral fact-finding. Like former LEOs, they know best how to take a side and stick with it. To ensure a truly independent investigation, you need to ensure that the attorney, even within the context of explaining legal ramifications, does not take “your side” in assessing their fact findings.
Not all attorneys have been trained in trauma-informed approaches essential for sensitive workplace investigations. Understanding how to interview witnesses who’ve experienced harassment or abuse requires skills beyond what law schools typically teach. Look for experience in sensitive investigations as well as legal skills.
The attorney-client privilege dimension creates complexity. As explained below, if an attorney conducts investigations specifically to provide legal advice, privilege may protect their work. But many workplace investigations need transparency rather than privilege protection. Some attorneys disclaim the attorney-client relationship to maintain neutrality, which may affect their legal authorization to conduct investigations in states requiring private investigator licensing. Be certain that you and any attorney you hire can navigate these complexities to ensure a truly independent investigation.
Questions to ask attorney-investigators:
“Will you be conducting this investigation within an attorney-client relationship, and if so, how does that affect what information you will disclose?”
“Beyond legal advice about findings, what specialized training do you have in conducting workplace investigations?”
“How do you balance legal analysis with creating safe environments for witnesses to share sensitive information?”
“How do you conduct an independent investigation without giving in to your lawyer training to take a side in a controversy?”
Attorneys who are a good fit for your organization and investigation will be able to explain how they will navigate these various concerns.
Understanding Attorney-Client Privilege in Investigative Work
If you’re considering an attorney for investigative work, understand how attorney-client privilege affects the investigation and whether privilege protection serves your organization’s best interests.
When privilege applies: Attorney-client privilege protects communications when the dominant purpose is obtaining legal advice rather than routine fact-finding. If you engage a law firm to conduct investigations specifically to provide legal advice along with factual findings and potential responses, privilege may protect the investigative work.
Strategic considerations: Privilege prevents disclosure in subsequent legal cases, but it also limits transparency. Employees may trust investigations less when they know findings are privileged and may not be disclosed. Some situations benefit from privilege protection; others require transparency that privilege would compromise.
Structure matters: Simply hiring an attorney doesn’t automatically create privilege. The engagement must be structured to establish attorney-client relationship and the investigation must be conducted to support legal advice. Some attorneys conduct investigations explicitly outside attorney-client relationships to maintain neutrality. That arrangement may in turn affect their legal authorization to conduct investigations in states requiring private investigator licensing.
Ask yourself, “Will this investigation be conducted under attorney-client privilege, and how does that arrangement affect what information will be shared with employees and stakeholders? How will any limitations on information sharing affect the credibility of the investigation?”
Practical Considerations: Costs and Timelines
Understanding realistic costs and timelines helps you make informed decisions.
Investigation costs vary based on investigator background and complexity. Former LEOs often charge less than law firm attorneys. For investigations requiring extensive review of public records, numerous witness interviews, or specialized expertise, costs accumulate quickly. Ask for clear fee structures and realistic estimates based on the type of information you need and number of potential witnesses involved.
Timeline expectations matter for employee trust and legal obligations. Quality investigations take time. Rushing to interview witnesses before reviewing relevant documents compromises quality. But investigations shouldn’t drag on unnecessarily. Former LEOs sometimes promise faster timelines based on their criminal investigation experience, where urgency often drives pace. Organizational investigations require different pacing that allows thoughtful analysis of witness statements and careful evaluation of crucial evidence.
Making Your Decision
Former law enforcement can bring a wealth of experience to your investigation, and attorneys bring legal skills and privilege protections. Each profession, however, also brings a corresponding set of limitations. Be certain that you are partnering with a person who can investigate objectively, approach witnesses with sensitivity, and understands organizations such as yours. Choosing the right investigative partner protects everyone: those bringing complaints forward, those responding to allegations, and your organization’s capacity to pursue truth and justice even in the hardest circumstances.
