New York Employment Lawyer Blog

Employment attorneys hired by employers to investigate cases of sexual harassment may be sued for negligent misrepresentation by the employee whose claim they are investigating. In a recent decision by the Federal District Court for the District of New Jersey, it was held that when the employer’s attorney offers advice or interpretations of law to the purported victim they can be sued for negligent misrepresentation.

In Spagnola v. Morristown, the Federal District Court, using the New Jersey common law standard for negligent misrepresentation, found that the outside lawyer hired by the municipality to investigate Spagnola’s claim of sexual harassment negligently misrepresented Spagnola. The attorney went beyond collection of facts and told her that the town wasn’t going to do anything; that it didn’t have to; and that she was not harassed because there was no touching or direct harassing language. Spagnola had been forced to view explicit materials by her boss. Upon hearing this advice, Spagnola continued in her job and suffered further harassment.

An attorney can owe a duty of care to a non-client if the attorney knew or should have known that the non-client would rely on the attorney’s representations and if the alleged client was not too remote from the attorney to be entitled to some measure of protection. This case re-emphasizes the importance of setting clear delineations between clients and victims/witnesses when investigating cases of harassment. Employer’s attorneys must restrain investigations to fact gathering and interviews or risk a Spagnola lawsuit.