Michigan State University. Photo: EQRoy/Shutterstock.com

While Michigan State University waits to hire its third general counsel in just over a year, its board of trustees has decided to hire a law firm to conduct an independent investigation into the Larry Nassar sexual abuse scandal and to make that report public.

The timing is highly unusual. Normally a school learns of a problem and orders an internal investigation immediately. But Michigan State said June 21 it is hiring McDermott Will & Emery to conduct a probe three years after Nassar's arrest in 2016.

“The past history of failed investigations of Nassar at Michigan State distinguishes this case from the norm and warrants a reckoning in the view of the unanimous Michigan State board,” said Daniel Prywes, a litigation partner at Morris, Manning, & Martin in Washington, D.C.

This is not a case of a “better late than never” investigation, Prywes added, but rather a case of “better done right at last.”

The previous “failed investigations” included a 2014 probe of a complaint against Nassar headed by assistant general counsel Kristine Moore. That probe cleared the sports doctor of wrongdoing.

After Nassar's arrest, the board hired Skadden, Arps, Slate, Meagher & Flom to defend it and promised an internal investigation. But the law firm's findings were never made public.

Then, after Nassar's conviction, the state attorney general's office concluded its own investigation by indicting three school employees, including the former president for allegedly lying about when she knew of Nassar's misconduct. Her case is ongoing.

The state's investigation ended on a sour note when the school, which had vowed to cooperate, refused to waive attorney-client privilege over documents, and the prosecution lost its fight for the materials in court. Prywes said the dispute over documents has “clouded” the credibility of that investigation.

Demanding accountability, several survivors of the abuse continued to lobby the board to hire an independent investigator, even after the victims settled their claims for $500 million last year.

Laurel Gift, chair of the criminal defense and internal investigations practice at Schnader Harrison Segal & Lewis in Pittsburgh, said Tuesday “it is never too late” for an independent investigation.

Gift said the “purpose is to be satisfied, especially in instances of sexual misconduct, that they have a factual understanding of who knew what and when, and how they responded. It's possible the trustees know the answers, but because of the [privileged] context of the prior review, they can't share it.”

So why not just waive its privilege over the previous investigative documents? Gift said it's essential that an investigator know up-front that their work will be publicly disclosed.

“It's very hard to conduct a confidential and privileged investigation and later try to move toward making it public,” she explained.

Gift added the school “really needs the results of an investigation that can be shared publicly in order for the community and the individuals to heal.”

Michigan State spokesperson Emily Guerrant said the trustees did not issue a formal statement after voting to approve the investigation. Guerrant said the law firm contract has not yet been finalized because the scope of work, time frame and costs are still being worked out.

Normally a general counsel would be involved in such details, but Michigan State fired its general counsel in February after one year on the job.

Guerrant explained, “An official search [for a new general counsel] is not happening. I think it's appropriate to say that the university is waiting until our new president is officially here and can have an opinion.”

The board has hired Samuel Stanley, a medical doctor and head of Stony Brook University in New York, as Michigan State's new leader. He begins Aug. 1.