You hear a rumor that a teacher in your school district invited a high school senior to his home to work on an “extra credit project.” Even worse, the school principal reportedly was aware of an improper relationship but took no action. If the rumors are true, bad press is inevitable and some form of litigation is possible. As a board member, you need to know the facts. Obviously, the matter must be investigated. Who should conduct such an investigation? Should it be (1) a district employee, such as the school superintendent, (2) an independent investigator, such as a retired police detective or (3) an attorney, such as your district’s general counsel?

In the first option, a school administrator could be assigned the task of determining whether the rumors have any basis in fact. On the plus side, he or she would know many if not all of the people involved and the applicable school policies. The administrator probably would have a good sense of who might be protecting someone or withholding information. On the other hand, the administrator may have ties to some of the people being questioned. And he or she probably lacks the interviewing and record-keeping skills that are needed to conduct a thorough and impartial investigation.

A second option would be for the board to hire a private investigator. But if a lawsuit arises, the private investigator’s work product – such as notes or reports – may be discoverable in any subsequent litigation. Also, individuals could petition to obtain the information under the state’s Freedom of Information Law.

The third option is to use an attorney – either your school attorney or an outside attorney. An attorney offers a unique skill set, but the critical advantage involves the ability to conduct the investigation in a way that ensures that information will be protected by attorney-client privilege. Furthermore, if the attorney hires a private investigator, rather than the board, that individual’s work product will belong to the attorney, not the board, and will be protected from disclosure under the state Freedom of Information Law.

For this reason, it is routine for school boards to have an attorney conduct investigations when they are needed. If the allegations involve a potential crime, it would be appropriate to inform local police and/or the district attorney about the internal investigation – possibly at the onset or, more likely, after some credible information is gathered. This article will explore issues related to using an attorney as an investigator.

One issue involves whether any conflict of interest is present. Attorneys in this state must comply with the New York State Unified Court System’s Rules of Professional Conduct (22 NYCRR Part 1200), which states that an attorney may be prohibited from representing a client if “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by a lawyer’s own financial, business, property or other personal interests.” If your school attorney has any business relationship with a party to the investigation, his or her ability to serve as the investigator may be compromised. Therefore, depending on the circumstances, it may be preferable to hire an outside attorney to investigate.

While investigatory notes taken by a non-attorney are discoverable in court and may, ultimately, be accessible under the Freedom of Information Law, notes and communications involving an attorney can be protected from disclosure. Rule 1.6 of the Rules of Professional Con-duct address the confidentiality of information, which protects information obtained during or relating to the attorney’s representation of a client. The rule provides that confidential information consists of information (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.

Often, this means that an attorney employed by the school board has no obligation to disclose notes, letters and other material to interested parties, such as a union representative or union attorney, even if the information gathered in the investigation leads to discipline or another legal proceeding. On the other hand, an attorney may be obligated to reveal confidential information in response to a court order. And there is a loophole that can require disclosure if the attorney is acting merely as an investigator and not giving legal advice.

The seminal case on the subject is Upjohn Co. v. United States, in which the U.S. Supreme Court ruled unanimously in 1981 that an employer could invoke the attorney-client privilege to protect communications made between its lawyers and non-management employees. This is relevant to school investigations that may involve questioning of many parties, such as teachers, principals and administrators.

Since the Upjohn ruling, courts have upheld the ability of employers, such as school boards, to protect investigative reports and other material from disclosure because of attorney-client privilege. In a case entitled In Re Kellogg Brown & Root, Inc. the U.S. Circuit Court for the District of Columbia held in 2014 that “[i]n the context of an organization’s internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply.”

It is worth noting that counsel is retained by the school board, and the board is the attorney’s client – not any one individual, board member or administrator. In fact, attorneys or investigators working for attorneys who are questioning school employees should be certain to use what’s called an “Upjohn warning” – a notification that the attorney or investigator working for the attorney represents the school district (i.e., the school board) and not the individual being questioned.  

To see how this played out in the school context, consider a case involving an Illinois school district In Sandra T.E. v. South Berwyn School District 100, an elementary school music teacher was charged
with sexual molestation of students over a multi-year period and the school’s principal was alleged to have been deliberately indifferent to the abuse. The school district hired a former U.S. Attorney for the Northern District of Illinois to conduct an investigation. Subsequently, victims of the abuse initiated civil litigation against the school district and sought the attorney’s investigatory notes. Ultimately, the U.S. Court of Appeals for the Seventh Circuit did not require production of the investigatory documents.

In its determination, the court high-lighted the law firm’s engagement letter to the district, which said that the attorney’s law fi rm would “investigate the response of the school administration to allegations of sexual abuse of students,” and “provide legal services in connection with the specific representation.” The court concluded that “because the . . . lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation.”

School boards need to make decisions based on facts, and gathering facts sometimes requires an investigation. When selecting an investigator, a district must consider the likelihood of legal action arising. In many circumstances, using an attorney is the board’s the best choice.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Lawrence J. Tenenbaum and Demaurey Drummond of Jaspan Schlesinger, LLP.