Are Faith-Based Investigations Required to be “Independent”?

Our boutique regularly does faith-based investigations around the country for Protestant and Catholic organizations (humanitarian orgs, churches, schools, etc.). 

Given past abuses by churches and the use of lawyers to engage in cover-ups, there is a bias by some against allowing organizations to conduct investigations with attorneys retained by the organization.  In making their objections, advocates make it clear that they want an “independent” investigation.

Independence—a Standard with No Legal Support

Unfortunately, there is no uniform definition or legal standard that such advocacy organizations point to as to what an “independent” investigation means.

Given the lack of agreed-upon definition of "independent," we have heard a variety of definitions for "independent" in the context of faith investigations. We have heard folks identify “independent” to include a variety of factors such as that the investigation:

1. Be conducted by an outside firm or non-profit with no prior professional relationship with the organization;

2. Where no payment is made to the investigator by the client;

3. Where the investigation has to be made public regardless of privacy concerns of individuals involved;

4. Where the investigation is not conducted by an attorney; and

5. Where there is no time, geographic for witness limit as to scope.

While this may be a preference some people have, there is no legal basis or governing authority for such a position. 

The Legal Standard for an Investigation: Prompt, Thorough and Objective

The legal standard for investigations that actually exists does not instead use the vague term “independent.” Instead, the legal standard for an investigation that exists requires that an investigation be: prompt, thorough, and objective/fair.  

The Federal Equal Employment Opportunity Commission and California's Civil Rights Department make clear that a "prompt, thorough and fair investigation" of complaints is needed.  (EEOC: https://www.eeoc.gov/employers/small-business/harassment-policy-tips/CA; CA Civil Rights:https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide-1.pdf.)

 It is a standard that is taught through the Association of Workplace Investigators (AWI), which is the leading investigation training organization in the country on workplace related investigations.  AWI's guideline says, “Guiding Principle: The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation.”  https://cdn.ymaws.com/www.awi.org/resource/resmgr/files/publications/AWI-Guiding-Principles-Broch.pdf

 While some in the advocate faith-based community argue that an investigation has to be “independent.”  Independent is simply not a term used in the law or through the governing organizations focused on harassment/discrimination and workplace investigations.  In fact, this is a term that is almost exclusively used in faith communities by advocates. 

Attorneys and Internal Investigators Routinely and Properly Conduct Investigations

It bears noting that nothing in case law we have seen states that someone with a professional relationship with an organization cannot, per se, be impartial or objective. 

In fact, AWI guidelines say, “Employers may choose to use an internal investigator. In such a case, the hierarchy of the organization should be considered in order to avoid the fact or perception of bias or compromised objectivity.”  As such, most investigations are conducted by attorneys, HR professionals or private investigators.  See, Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101 (1997) (regional sales manager and personnel manager); Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256 (1998) (HR rep trained by in-house counsel); Jameson v. Pacific Gas & Elec. Co., 16 Cal. App. 5th 901 (2017) (lawyer conducted investigation).

Further, if a conflict emerges as to the people involved, outside lawyer investigators are brought in.  In Jameson, the defendant-employer hired an experienced lawyer to investigate a complaint regarding workplace retaliation against an employee who reported safety violations. When the investigator concluded that no retaliation had taken place, the employee attacked the investigation, claiming the process itself had been unfair.

The court underscored that the investigator had extensive experience, had interviewed 10 witnesses and provided reasons for not interviewing several more, and had produced a detailed report with her analysis and conclusions. It also noted the employee had been directed to speak to the investigator early in the process. Even though the investigator had conducted investigations for this employer in the past, the court found she could properly be deemed a neutral party and that her investigation was both thorough and fair. Jameson v. Pac. Gas & Elec. Co., 16 Cal. App. 5th 901 (2017).

As for the notion that an attorney conducting an investigation will create an inherent bias in the investigation outcome, we turn to the rules of professional conduct.  Just because an attorney represents a client doesn’t mean an attorney condones a client’s past conduct. Model Rule 1.2(b): “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.”

Attorneys are Duty Bound to Be Candid and Not Engage in Unlawful Conduct

When doing investigations, attorneys are required to be candid with client about bad facts. Model rule 2.1: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” 

While there have been bad-apple attorneys that have engaged in cover-ups and furthering of misconduct, those are the exceptions and not the rule. Frankly, it is arguable that those attorneys were engaged in improper and unprofessional conduct. It is clear that attorneys are duty bound not to perpetuate unlawful conduct. Model Rule 1.2(d): “d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

To further ensure objectivity, engagements with investigating attorneys can make it clear the role of the attorney as conducting an impartial investigation of factual findings. As such, if retained to conduct an impartial investigation, not being impartial would be a breach of the attorney’s ethical duties.

 What is a Good Investigation?

It bears noting that, according to case law, what makes good investigations is not focused so much on who conducts the investigation, but the process undertaken.   For example, good investigations include:

1. Promptness. Complainant and relevant witnesses interviewed promptly.  See, Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101 (1997) (“textbook investigation”).

2. Due Process. Respondent was notified of the charges against him and afforded the opportunity to present his version of the incidents.  Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256 (1998)

3. Unbiased Questioning. Questioning is open ended, non-leading to elicit facts.  (id.)

4. Confidentiality to Prevent Undue Influence and Protect Privacy Concerns. Confidentiality protected by conducting some interviews off of the premises or by telephone. (id).

5. Documentation. Memorialized witness interviews. (id)

6. Thorough Review of Documents. Documents reviewed.  Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101 (1997)

In Casenas, the court described a “textbook example” of how to respond appropriately to an employee’s harassment complaint. Plaintiff Bernadine Casenas alleged that her district manager had sexually harassed her and then retaliated against her by issuing an unfair performance review.

• The investigation was conducted by Denis Ison, a regional sales manager, and Barbara Sheiman, a personnel manager.

• They interviewed Casenas as soon as she was available, interviewed the district manager, and interviewed the district manager’s other current and former direct reports as well as a manager from a related corporate enterprise.

• Five people re-reviewed Casenas’ performance review, including Fujisawa’s president.

• Using the company’s statistical data, they found that her rating of “highly commendable” but not “outstanding” was reasonable based on her sales performance compared to other employees.

• They further found Casenas’ 7% salary increase was at the very top of the merit increases recommended by the district manager and did not indicate retaliation.

• However, Ison and Sheiman concluded that the district manager had engaged in inappropriate statements and actions.

• Accordingly, they issued the district manager a formal reprimand and directed him not to discuss Casenas or initiate any contact with Casenas.

• Because Casenas declined a face-to-face meeting, Ison and Sheiman issued a letter summarizing the investigation findings and advising her of the actions taken regarding the district manager.

• Although Ison continued to respond to additional concerns raised by the employee and met with her personally at length, Casenas refused to accept these findings and resigned.

In affirming summary judgment to Fujisawa, the court described the company’s conduct as “exemplary.”

Even Scripture Makes Clear that Faith-Based Investigators Are Not Disqualified Because of Prior Affiliation

Law aside, to the faith community, it is instructive to review what the Scriptures shows about the first investigation ever conducted.

Luke was a physician and disciple of Paul and Jesus Christ.  He was an "insider" but more importantly, a thorough and fact-based investigator who conducted the most important investigation ever conducted— who was Jesus? 

He made his process clear, “With this in mind, since I myself have carefully investigated everything from the beginning, I too decided to write an orderly account for you, most excellent Theophilus, so that you may know the certainty of the things you have been taught.” Luke 1:3-4

Guided by the law and the example of the Apostle Luke, we are confident that an investigation can be conducted by an attorney or internal investigator so long as it is a prompt, thorough and objective/fair investigation.

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Before joining C+H, San Diego Partner Juan Castañeda spent years in Big Law and with the Department of Justice as a federal prosecutor.  Juan has handled investigation for faith-based organizations and corporate clients as well as represented complainants, third party witnesses, and respondents in investigations throughout the United States.

For more information on his background and experience, please visit https://ch-llp.com/about-juan-castaneda.

Tips for Conducting Effective CEO Interviews in Internal Investigations

How do you interview a CEO for an internal investigation? Efficiently and professionally.

I’ve had several opportunities to interview CEOs and founders in internal investigations and have learned a few things.

 1. Get to the Point.

Normally interviews start with pleasantries and rapport building. In the case of CEOs, time is of the essence. I have learned that you will gain the most trust with them by getting to the meat and potatoes. Save the throat clearing and small talk for other interviews.

2. Let Them Know Where We Are Going.

Any good lawyer knows that executives loathe lawyer memos and long emails laying out every conceivable risk and options (without sharing an actual opinion). Executives just want the executive summary--preferably in bullet points. In the same way, be up front with CEOs about the process, their role, and how long the interview is going to take. If you are up front and they are aware of when this train gets to the station, they are more likely to be present in the process.

3. Give Them Control Upfront.

CEOs love control. They are used to control. They do not like interviews with lawyers and they definitely do not like interviews with lawyers where they have no control. So, give them control. Open the floor first for them to share whatever they want to share about the situation. By giving them control, you will likely learn a lot about their temperament, the issue, and what is foremost on their mind. You can then take the conversation from that point onward to areas you would like to discuss.

4. Be Direct and Concrete.

If there are allegations and statements that have been attributed to the CEO or close confidents, ask about them directly and verbatim. This is not the time to generalize or be sloppy. Give them specific and detailed examples and allow the CEO to respond. Listen carefully and respond accordingly.

The more you are a professional and treat the time with CEO seriously and substantively, the more you will respect their time and the more they will be willing to participate more fully in the interview.

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Before joining C+H, San Diego Partner Juan Castañeda spent years in Big Law and with the Department of Justice as a federal prosecutor.  For more information on his background and experience, please visit https://ch-llp.com/about-juan-castaneda.

Phone and Laptop Searches at the Border

Did CBP ask to search your phone or laptop when entering the United States?  There’s a pretty good chance federal law enforcement is investigating you or your employer.

For FY2024, the U.S. Department of Homeland Security's U.S. Customs and Border Protection processed 420 million travelers at ports of entry.

3% (just over 12.6 million travelers) were referred to secondary inspection (i.e. given additional scrutiny by officers).

.01% (47,047 travelers) had their electronic devices searched.

Border searches usually don’t happen at random. 

And the law governing border searches of electronic devices is complicated and still developing.  Some circuits require reasonable suspicion.  Others no suspicion. In all cases, the search has to be reasonable under the Fourth Amendment.  

Internal DHS policies govern how the search is to be conducted, the timeline for getting your devices back, and other issues like whether a taint team is required to screen for attorney-client privileged materials.

So what should you do if CBP asks to search your phone or laptop at the border?  The answer will vary based on circumstances.  Are you a U.S. Citizen returning home?  A foreign national seeking admission?  An attorney carrying sensitive client information?

In all cases, you will want to be cooperative while also exercising your rights.  For example, you don’t have to provide your password, but if you don’t CBP can and likely will exclude or detain your device.  If you are a foreign national seeking admission, they might deny admission and send you home.  

If you or your employee’s phone or laptop are detained at the border, you will need sound counsel with experience in border searches and DHS policies and procedures.  If you are an employer sending employees abroad, it makes sense to think through and implement internal policies and procedures governing the carrying of electronic devices containing sensitive corporate information.

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Before joining C+H, C+H Dallas Partner Rob Dunikoski spent years advising Homeland Security Investigation (HSI) special agents on these and other complicated customs law issues.  For more information on his background and experience, please visit https://ch-llp.com/about-rob-dunikoski.

Preventing Misconduct with an Ethical Infrastructure

My colleague Juan Castañeda recently offered excellent guidance for how to handle an internal investigation—a critical part of responding once a problem has materialized.  

But how to keep ethical misconduct issues from arising in the first place—or once something goes amiss, keep it from metastasizing into a full-blown scandal?

Let’s ask the robots.

I thought I’d check what AI had to say about it. But first, I spent a few moments jotting down core principles I anticipated from the computer’s compilation of conventional wisdom:

1.     Policies and processes

2.     Tone from the top

3.     Strong culture promoting speaking up

4.     Accountability

Let’s see how well I guessed. (Scout’s honor, I wrote this list before running this prompt.)

***Bated breath***

Four out of four!

Well, that’s that—do I even need to write this article?

If you know these things, blessed are you if you do them

Not so fast. It’s easy to list each of these items on a best practices checklist.

What’s hard is to do them—and do them well. Crossing these items off a list may prevent liability when something blows up—a non-trivial goal most organizations are wise to pursue. But avoiding liability is a low bar. When misconduct arises, it tends to derail an organization from its mission, creating churn and tainting a hard-won reputation. Wouldn’t it be nice if you could simply prevent bad things from happening in the first place?

The truth is, it’s impossible to fully prevent problems from arising. It seems built into how humans operate: sometimes we do the right thing—but all too often, we don’t. Even the best organization cannot control how employees, or even leaders, behave.

Investing in what you can control

But an organization can reap significant prevention benefits by treating these principles not as a checklist, but as investments in what can it control, building an ethical infrastructure which in turn, influences how people behave.

Let’s take a closer look at each item on our list:

1. Establish Clear Ethical Standards: Set clear and compelling expectations about what kind of behavior is permitted and prohibited through standards and policies that don’t just make rules, but reflect values and are easy to understand and follow. Ensuring people are aware of, understand, and connect expectations to a bigger picture is a baseline requirement for helping people who want to do the right thing succeed. Not to mention that it is significantly harder to have accountability when expectations aren’t clearly laid out.

2. Lead by Example from the Top: Just as policies and standards set formal expectations, the words and speech of leaders informally set expectations. They build culture, which can make it normal for people to do the right thing. This culture is built through thousands of often ordinary acts: a leader expressly asking for feedback, incorporating a reflection on ethical standards into a recurring agenda item for All Hands meetings rhythms, publicly praising someone’s courage in speaking up about a problem. It’s built into what is funny, what is celebrated, what is silently avoided. Leadership’s role is to ensure this culture is intentional, not accidental.

3. Create Safe Reporting Mechanisms: Even when an organization has clear expectations on paper, and leadership makes it normal to do the right thing, inevitably something will still go wrong. How can an organization make sure it hears about the problem in time to respond before it blows up? It probably won’t, without a well-publicized, easy to access, safe-feeling place to receive concerns, and a process that ensures the organization responds. This helps unearth issues so that an organization can reap the benefit of the final, critical piece of ethical infrastructure.

4. Enforce Consequences Consistently: All the policies, inspirational speeches about ethics, and reporting hotlines in the world won’t matter if people know the unwritten rule applies: when the right kind of person does the wrong thing, he or she can get away with it. Organizations can’t control who behaves badly, but they can ensure people are held accountable fairly—even when they are important, well-regarded leaders—rather than justifying conduct that falls short of organizational values and ethical standards in the name of the mission. 

The critical thing an organization can commit to is how it responds when something goes wrong, ensuring that 100% of reports are taken seriously, and that consequences are applied consistently when warranted. The ethical infrastructure is how it delivers on this commitment. While an organization cannot control bad behavior, by following through a commitment to consistent response it impacts how people behave.

Leading from integrity

But the language and action must work together. For example, if a leader says feedback is valued, but blows up when he or she receives it—people learn to question authority at their peril, a recipe for a scandal in the making to metastasize. This is why accountability is so important—if staff see people violate expectations without receiving consequences, they learn those rules can be broken with impunity, which leads to more bad behavior.

Which is why leadership is at the heart of an ethical infrastructure. Leaders have a powerful privilege and responsibility for setting the tone within an organization, not only in the precautions they implement, but who they are. Leaders who consciously prioritize building an ethical infrastructure while leading from integrity will create a liability shield—that gets far less frequent use, as doing the right thing becomes the norm.

But even AI knows: “when leaders compromise on ethics . . . it creates a culture where misconduct can flourish.” I couldn’t have said it better myself.

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If you have any questions about this article or need counsel on the issues addressed in it, please contact Jeannie Rose by emailing jeannierose@ch-llp.com.

The Top 4 Issues to Be Aware of When Doing an Internal Investigation

“So you are the great lawyer I’ve been told about! But, you are so young! I was expecting an old lawyer.”

With those words, the silver-haired senior-level executive of the customs broker I was investigating for bribery let me know that his guard was down. In fact, he

seemed relieved and almost eager to help me, a young lawyer that reminded him of his nephew.

This was exactly the reaction I wanted. We exchanged pleasantries in Spanish over a cup of coffee and proceeded to have a friendly free-flowing conversation. That conversation revealed that his company was bribing government officials in Latin America, he was a liar, and he had no idea that he had just given me the evidence I needed when I went up the chain to confront his boss. He never saw it coming.

There are many articles on best practices for conducting internal investigations related to bribery or fraud. However, at the core of any internal investigation— whether it be domestic or cross-border is—people. The people at the center of the investigation (employees, former employees, third party vendors, government officials or lawyers) are the key to unlocking the real story behind what has really happened. Faced with a whistleblower tip of bribery or fraud, a company will undoubtedly look at the underlying documents that paint a scattered picture of events, but it is the people that weave the documents together to tell the story. 

Here are some tips on the best ways to set-up witnesses interviews during an internal investigation for optimal effect.

 1. Start with the Low-Hanging Fruit.

Any good investigation looks like a pyramid. Ideally, start your internal interviews on the ground floor with lower-level personnel. Why? First, they will most likely be further removed from the fraud being perpetrated by senior management and thus, more forthcoming about facts.

Second, the ground troops may be actual witnesses to executive-level fraud and more than willing to blow the whistle on management if given an opportunity.

 Third, line employees possess great real-time information of the daily happenings within the company, where data is located, as well as a more accurate view of the “real” heirarcy in a company. Interviewing these witnesses will be useful in recreating who may be behind the fraud, the centers of power within a company that could have known of the fraud, and where the web of deceit extends.

2. Pick a Location that Puts Them at Ease.

If you are going to interview any company employee (be it lower-level personnel or senior executive), find a location that will put them at ease. If it makes sense, talk to them at their workplace in a discrete conference room or set-up a meeting at a neutral location. Do not conduct the interview at a lawyer’s office. Pick a location that is open, bright and pleasant to be in. Aside from location, be a good host.

Coordinate logistics (via phone, not email) so that food, refreshments and ample parking are available.

While it may seem trite: environment matters. You do not want your potential key witness to arrive at a location and feel instantly uncomfortable by the set-up.

Instead, you want to prime your witness from the start to feel good about what he or she is walking into and who they are meeting. Your interview and information will flow more freely if the witness is at ease.

For example, the interview that was conducted in the opening scene was held in a United States border town with Mexico, but in a beautiful Spanish style office adorned with Mexican art work, a friendly receptionist and plenty of food and coffee as hospitality. It set the tone for the “warm” conversation that took place thereafter.

3. The Interviewer Should Bring the Element of Surprise.

Let’s be honest, lawyers often think that the best way to get anything done is to be the loudest dog in the block. That may be the case in an adversarial proceeding with a person that can be easily intimidated to cave or in a cross-examination at trial. However, in most internal investigations, lawyers are dealing with witnesses from whom the lawyer wants information.

In such a scenario, the old adage is true: “you catch more flies with honey than you do with vinegar.” Thus, to get optimal information from a witness in an internal investigation, the interviewing lawyer should be non-threatening, friendly, and good with people.

As in the opening scenario, the senior executive that I was interviewing came with his guard up fully expecting to go toe-to-toe with a hardened lawyer. Instead, he found himself with a young friendly lawyer who treated him with respect. As a result, his apprehensions, anxiety and defensiveness melted away. In his mind, he had nothing to fear and information flowed my way. Information that was key for my later interviews and which confirmed to me that this friendly avuncular executive was lying.

4. Know Your Facts Cold.

Based on outward appearances, the attorney conducting your internal investigation interview should be pleasant and non-combative. However, behind the scenes, your interviewer should be prepared for anything. The single best way of preparing for the unexpected is to know the key facts cold.

In depth preparing would include:

• Collecting all key documents (especially emails and personnel files)

• Creating a list of key players

• Reviewing and analyzing prior interviews

• Diagramming organizational charts and hierarchy structure

• Compiling a chronology of events

• Mapping pertinent locations

• Charting key processes and relevant products related to the fraud

• Compiling a vocabulary list of key business terms

• Researching U.S. and foreign laws related to privacy, attorney-client privilege, and the myriad of legal issues touching on the proported fraud

• Creating an investigation plan that tracks key witnesses, issues, potential offenses, documents, and questions that need to be answered

Why prepare? Plain and simple, thorough preparation and knowledge of the universe of facts is the single best way for the interviewer to spot an inconsistency, contradiction or bold-faced lie. Moreover, preparation creates confidence. A prepared investigating lawyer will not be spending his or her time making sense of basic information, but will be thoroughly present to connect with the witness.

Before joining C+H, San Diego Partner Juan Castañeda spent years in Big Law and with the Department of Justice.  For more information on his background and experience, please visit https://ch-llp.com/about-juan-castaneda.