When to retain a lawyer? Organizations take various steps to minimize the risks, such as the creation of internal policies and procedures, including a set of internal controls such that no untoward incidents take place. However, these steps are ineffectual unless they are properly enforced by conducting thorough investigations into the concerns raised and, if applicable, taking the necessary disciplinary or other remedial steps.
When To Retain A Lawyer? External Support
A thorough and proper investigation lays the foundation for the formation of a safe and healthy work environment. It, however, also represents a legal minefield for organizations, as any action (or inaction) without proper consideration of all relevant laws and practices can expose organizations to legal liability.
Due to this, organizations often consider that an unbiased, accurate, fair, and reasonable investigation is the necessary starting point for any complaints made. While a large organization may have enough resources that such investigations may be performed internally, ensuring objectivity and independence in some cases may be difficult.
In fact, given the increased legal and reputational scrutiny from all fronts that the organizations now face, it is increasingly being observed that many organizations retain external legal counsel to conduct such investigations.
A written representation agreement is required if you are going to hire an attorney on retainer. This agreement will outline the types of matters that your attorney can handle, when you will pay them, and how much you will pay for their services. It is important to understand what you are getting for what you are paying, just as it is with any other fee arrangement, and a written agreement can help protect you.
The five main reasons why employers may prefer external legal counsel to carry out investigations include:
Experience
External legal advisors have extensive experience with minute details of the laws and weighing evidence, assessing credibility, and reaching defensible conclusions.
Neutrality
Having a party external to the organization perform the investigation avoids accusations of bias as they are viewed as objective third parties and maintain a degree of separation from the conclusions reached.
Avoiding Conflicts Of interest
It may not be possible to avoid conflicts of interest if internal investigators are used as they may have a self-interest in the matter being investigated. In these instances gaining external support is the only option.
Resources
Organizations, especially medium to low tier organizations, may not have a sufficient workforce or other resources that can take on investigations along with their other day-to-day jobs. Not having sufficient resources may mean that investigation is compromised and can result in reputational or legal damage for the company.
Cost Savings
Having an in-house legal counsel will involve expenses throughout the year for their training, travel, retention, whereas external counsel can be engaged on an ad-hoc basis.
Overall, circumstances will determine whether an investigation can be conducted in-house or external investigators are required, whether due to resource constraints, independence issues, or legal requirements.
Final Thoughts
When someone threatens to call their lawyer, it is likely that they have a lawyer on retainer, which means that you, the client, pay a small amount on a regular basis. In exchange, the lawyer provides specific legal services as needed.
Retainers are most useful for businesses that require constant or semi-recurring legal work but do not have the funds to hire a full-time lawyer. This could include services such as ensuring regulatory compliance, reviewing documents, or representing the company in employment or contract disputes. Also, individuals who are likely to require a significant amount of legal work, typically those with a higher net worth, may wish to keep a lawyer on retainer.