Ethical Issues for Employment Investigations on Campus Carl Crosby Lehman, Gray Plant Mooty Brent Benrud, University of Minnesota

Hypothetical 1: Facts Employee in the Medical School Dean’s office accused of using University purchasing card to buy personal items totaling approx. $1000. Situation uncovered during routine audit. Auditor reports matter to GC’s office.

Hypothetical 1: Who Investigates? ABA Model Rule 1.1 – Competence ABA Model Rule Confidentiality of Information ABA Model Rule 1.7, 1.8 – Conflicts of Interest ABA Model Rule Organization as Client

Hypothetical 1: Who Investigates? ABA Model Rule Communication With Person Represented By Counsel ABA Model Rule Dealing with Unrepresented Person ABA Model Rule Lawyer as Witness ABA Model Rule Professional Independence of a Lawyer

Hypothetical 1: Who Investigates? University Attorney? Outside Counsel? Other University Person/Office (e.g., HR, Audits)? Other Outside Person? Does it really matter?

Hypothetical 1: Other Considerations Scope of Investigation Attorney/Client and Work Product Privilege Issues Upjohn Warning Garrity Warning Issues related to Investigation Report

Hypothetical 2: Facts Law School Dean travels to work-related conference; incurs work-related and personal expenses. Upon return, Dean requests and receives reimbursement for all expenses. Personal expenses total approx. $1000. Situation discovered during routine audit. Auditor reports situation to GC’s office.

Hypothetical 2: Who Investigates? University Attorney? Outside Counsel? Other University Person/Office (e.g., HR, Audits)? Other Outside Person? Does it really matter?

Hypothetical 2: Other Considerations Scope of Investigation Attorney/Client and Work Product Privilege Issues Upjohn Warning Garrity Warning Issues related to Investigation Report

Hypothetical 3 High profile student athlete dismissed from football team for conduct code violations. Student athlete tells local sports reporter that he was dismissed after he informed Head Football Coach of NCAA violations committed by an Assistant Coach during the recruiting process. Reporter calls University President for comment. University President calls GC.

Hypothetical 3: Who Investigates? University Attorney? Outside Counsel? Other University Person (e.g., HR, Audits)? Other Outside Person? Does it really matter?

Hypothetical 3: Other Considerations? Scope of Investigation Attorney/Client and Work Product Privilege Issues Upjohn Warning Issues related to Investigation Report

Hypothetical 3 Continued Based upon investigation, University concludes student athlete is lying; finds no improper conduct by Head Coach or Assistant Coach. Student athlete files lawsuit alleging various Constitutional, statutory, and common law claims against University, and against Coaches in their individual capacities. University has indemnification policy.

Hypothetical 3 Continued: Who Handles Lawsuit? University Counsel? Outside Counsel? Can same attorney represent University and Coaches? Indemnification Letter Retainer Letter

Hypothetical 3 Continued: Indemnification Letter Confirm grant of indemnification. Legal defense will be provided by… If legal defense by outside counsel, list any conditions or limitations. Employee expected to cooperate. If Employee does not cooperate, indemnification may be withdrawn. Indemnification decision made based upon determination that employee acted in good faith. If new facts arise, indemnification may be withdrawn.

Hypothetical 3 Continued: Retainer Letter (Joint Representation) Confirm that GC will represent both University and individual. GC knows of no conflict; individual knows of no conflict. Individual waives any conflict. If conflict discovered, then… Possible detrimental effects of joint representation.

Hypothetical 3 Continued: Other Considerations Attorney/Client and Work Product Privilege Issues Attorney as Witness Employee’s Duty to Cooperate

More Hypothetical 3 Compliance Director self-reports alleged recruiting violations to the NCAA. NCAA sends Compliance Director notice of investigation, including list of players and staff to be interviewed. Citing duty to cooperate, NCAA directs Compliance Director not to talk to anyone about investigation, especially persons on the interview list, until investigation is complete. Compliance Director consults GC.

More Hypothetical 3: Considerations Who is the client? Who decides what is in the best interest of the University? Who can GC talk to? Ethical duty to zealously advocate v. NCAA duty to cooperate. Internal conflicts of interest.

Ethical Issues Related to Technology Attorney/Client Privilege Dual Representations – Obligation to Share/Disclose Information Other Issues