HOW AGENCY COUNSELS UNETHICALLY INFLUENCE EEO INVESTIGATIONS

Attorneys are supposed to aggressively represent their clients, but they are also required to avoid acting unethically.  The EEOC just issued a decision reminding agency attorneys of that.  It found that attorneys representing SSA management improperly interfered with the EEO investigation process by helping agency managers draft their affidavits, giving them “feedback” when they wrote things the agency attorney felt would hurt the agency. EEOC wrote that, “However, during the informal counseling stage and the investigation into the accepted issues of the complaint, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” That means agency attorneys may not review or assist agency witnesses in drafting testimony.  The Commission made clear that if the attorney’s interference impacts the ultimate decision it will impose sanctions, which could include sustaining the employee’s complaint for interference reasons alone. In fact, interference by anyone in management would be wrong.Seems like in every future case employee attorneys should be asking agency witnesses if the agency attorney played any role in preparing their affidavit, disclosing evidence, etc.  Check out Josefina L.  v. SSA EEOC No. 0120161760 (2018)