Lawyers Retained as Investigators: Is There a Potential for Bias?
Elizabeth Bingham of Rubin Thomlison LLP published this article called: “Who is impartial? Reflections on Toronto Metropolitan Faculty Association v. Toronto Metropolitan University” on December 18, 2024. For any lawyer who also acts as an investigator, I highly recommend that you read this article and the decision.
Ms. Bingham begins her article by stating, One of our core responsibilities as workplace investigators is to be impartial. In this case, Toronto Metropolitan University (TMU) hired two lawyers to investigate two professors at TMU. The Toronto Metropolitan Faculty Association (TFA) raised concerns about the potential for bias. For example, TFA argued, among other things, that there was the appearance of a solicitor-client relationship between TMU and the lawyers hired as investigators and that they could reasonably be perceived as acting as advocates for TMU, which was contrary to the role of an impartial investigator.
The arbitrator indeed found that the solicitor-client relationship (or the appearance of a solicitor-client relationship) created a reasonable apprehension of bias on the part of the investigators, which meant that they could not be perceived as impartial. (In my article of January 12, 2025, I discuss reasonable apprehension of bias in the context of a decision that I wrote.) The very nature of a solicitor-client relationship is that a lawyer must put a client’s interests above all others.
Any lawyers acting as investigators must have well drafted retainer letters that clearly establish that the lawyer is acting as an impartial investigator and not providing any legal advice.