In several recent instances involving internal investigations of prominent sex harassment controversies, the conduct of the general counsel, and the scope of engagement of outside investigative counsel, have become the focus of controversy.
The most noteworthy example involves the role of the Michigan State Attorney Office of the General Counsel in connection with the notorious Nasser matter. There has been substantial media coverage of the ethics-based complaint of a plaintiff's attorney that a Michigan State University (MSU) Office of Inclusion lawyer mishandled the preparation of a Title IX report by failing to include key elements of the Title IX investigation (relating to concerns with Nasser) in a version of the report provided to the claimant. (The insinuation being that full disclosure by the claimant may have helped prevent further abuse by Nasser). Based on these allegations, an MSU trustee has publicly called for the immediate resignation of the MSU general counsel, and for an independent review of the legal department's handling of the Nasser matter. In addition, a front-page article in the January 27 edition of The New York Times reflected criticism that the scope of engagement of the university's nationally prominent outside counsel was to conduct an internal review of the Nasser allegations to protect the university's interests, as opposed to conducting a full-fledged independent investigation.
A separate example was the resignation of the long-time American Red Cross general counsel following published reports in ProPublica that he had once made public comments that were perceived as undermining the organization's decision to terminate a senior executive for concerns with sexual harassment. A 2012 internal investigation conducted by outside counsel regarding the executive's conduct had prompted the executive's termination. Shortly after the termination, the in-house counsel made favorable comments concerning that senior executive, including an expression of regret that the executive was leaving the organization—without making reference to the harassment allegations. A third example is the allegation in a shareholder derivative suit involving a large leisure activity company that the corporate general counsel breached her fiduciary duties by failing to disclose to proper authorities evidence she supposedly had concerning the alleged sexual misconduct of the company's CEO.
These and similar developments reflect a disquieting trend (at least in the media, if not also amongst corporate leadership) of making the role and conduct of counsel in connection with internal investigations a focus of particular scrutiny.
To view original article, please click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
