Corporate counsel must shudder in the #MeToo era when they hear that their organization’s CEO (and typically their boss) is accused of sexual harassment. The dual but conflicting loyalty owed to the CEO, as well as to the organizational client presents unique ethical challenges. But despite this quandary, the lawyer’s singular focus should be on the task at hand: addressing the complaint in a manner consistent with the law and the organization’s internal procedures. Here are some guidelines for what corporate counsel should do and not do when a CEO is accused of sexual harassment.
Resist the urge to inform the CEO. There is a danger that, once informed, the CEO might hijack the investigation and substitute a frontier sort of justice or subtly pressure the investigators. Instead, the first telephone call (not an email or a text) after learning of the claim should be to the board chair or the lead board member responsible for risk management. Decisions regarding next steps with respect to an organization’s leader should always be made in conjunction with a least one board representative because the board must commit to the investigation. While the board (or appropriate board committee member) may ultimately decide to inform the CEO of the investigation, that decision should not be undertaken without the advice of counsel. The board will also promptly need to consider whether to suspend the CEO during the investigative process and, if so, decide who will undertake their responsibilities.
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