10_a-best-practices-investigations-involving-n

Copyright 2020 Viera Mediation & Law, Hulst & Handler LLP, Andrea Kelly Smethurst Law, P.C.. "Confidential Information" does not include: - matters of public knowledge that result from

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Best Practices For Investigations

Involving Non-English Speakers

November 2020 AWI Conference

Presented by:

Gabrielle Handler Marks, Hulst & Handler LLP

www.hulsthandler.com

Claudia M Viera, Viera Mediation & Law

www.vieramediation.com

Andrea Kelly Smethurst, Andrea Kelly Smethurst Law, P.C

www.andreakellylaw.com

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SAMPLE NON-DISCLOSURE AGREEMENT FOR INTERPRETERS

This Non-disclosure Agreement ("Agreement") is made effective as of [Month] [Day], [Year] ("Effective Date"), by and between [Investigator] of [Firm] (“Owner”) and [Interpreter] ("Recipient")

[Interpreter] has been retained to provide interpreter/translation services for

interviews that will be conducted by [Firm] during a confidential investigation for

[Firm]’s client, [Name of Client] Information will be disclosed to the Recipient when she

is participating as an interpreter in this confidential investigation The Owner has

requested and the Recipient agrees that the Recipient will protect the confidential

material and information which may be disclosed between the Owner and the Recipient during any of these interviews that the Recipient is translating and/or interpreting, and/or with regards to any information she learns about this investigation that Owner is

conducting for [Client] Therefore, the parties agree as follows

I CONFIDENTIAL INFORMATION The term "Confidential Information" means

any information or material which is proprietary to the Owner, whether or not owned or developed by the Owner, which is not generally known other than by the Owner, and which the Recipient may obtain through any direct or indirect contact with the Owner Regardless of whether specifically identified as confidential or proprietary, Confidential Information shall include any information provided by the Owner concerning anything related to the investigation that [Firm] is conducting for [Client] (conveyed in writing, orally or in any other manner), and information of the Owner and any third party with which the Owner deals, including, without limitation, business records and plans, trade secrets, technical data, video footage (past and current live footage), product ideas,

contracts, financial information, pricing structure, discounts, computer programs and listings, source code and/or object code, copyrights and intellectual property, inventions, sales leads, strategic alliances, partners, and customer and client lists The nature of the information and the manner of disclosure are such that a reasonable person would

understand it to be confidential

A "Confidential Information" does not include:

- matters of public knowledge that result from disclosure by the Owner;

- information rightfully received by the Recipient from a third party without a duty of confidentiality;

- information independently developed by the Recipient;

- information disclosed by operation of law;

- information disclosed by the Recipient with the prior written consent of the Owner;

and any other information that both parties agree in writing is not confidential

II PROTECTION OF CONFIDENTIAL INFORMATION The Recipient

understands and acknowledges that the Confidential Information has been developed or obtained by the Owner by the investment of significant time, and effort, and that the Confidential Information is a valuable to the Owner and Owner’s client, and needs to be

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protected from improper disclosure In consideration for the receipt by the Recipient of the Confidential Information, the Recipient agrees as follows:

A No Disclosure The Recipient will hold the Confidential Information in

confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the Owner

B No Copying/Modifying The Recipient will not copy or modify any Confidential

Information without the prior written consent of the Owner

C Unauthorized Use The Recipient shall promptly advise the Owner if the

Recipient becomes aware of any possible unauthorized disclosure or use of the Confidential Information

III UNAUTHORIZED DISCLOSURE OF INFORMATION - INJUNCTION If it

appears that the Recipient has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, the Owner shall be entitled to an injunction to restrain the Recipient from disclosing the Confidential Information in whole or in part The Owner shall not be prohibited by this provision from pursuing other remedies,

including a claim for losses and damages

IV RETURN OF CONFIDENTIAL INFORMATION Upon the written request of

the Owner, the Recipient shall return to the Owner all written materials containing the Confidential Information The Recipient shall also deliver to the Owner written

statements signed by the Recipient certifying that all materials have been returned within five (5) days of receipt of the request

V RELATIONSHIP OF PARTIES Neither party has an obligation under this

Agreement to purchase any service or item from the other party, or commercially offer

independent contractor of Owner, and nothing contained in this Agreement shall be construed to create any agency, partnership, or joint venture

VI TERM This Agreement shall survive until such time as all Confidential Information

disclosed hereunder becomes publicly known and made generally available through no action or inaction of Recipient

VII INDEMNITY Each party agrees to defend, indemnify, and hold harmless the other

party and its officers, directors, agents, affiliates, distributors, representatives, and

employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorney's fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement

VIII ATTORNEY'S FEES In any legal action between the parties concerning this

Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs

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IX GENERAL PROVISIONS This Agreement sets forth the entire understanding of

the parties regarding confidentiality The obligations of confidentiality shall survive

indefinitely from the date of disclosure of the Confidential Information Any amendments

must be in writing and signed by both parties This Agreement shall be construed under

the laws of the State of California This Agreement shall not be assignable by either

party Neither party may delegate its duties under this Agreement without the prior

written consent of the other party The confidentiality provisions of this Agreement shall

remain in full force and effect at all times after the effective date of this Agreement If

any provision of this Agreement is held to be invalid, illegal or unenforceable, the

remaining portions of this Agreement shall remain in full force and effect and construed

so as to best effectuate the original intent and purpose of this Agreement

X SIGNATORIES This Agreement shall be executed by [Investigator] of [Firm],

Owner, on behalf of [Client], and [Interpreter], Recipient, and delivered in the manner

prescribed by law as of the date first written above

IN WITNESS WHEREOF, the authorized representatives of both parties have read the

foregoing document and understand, agree and accept these terms as of the Effective

Date

_

By: [Investigator]

_ By: [Interpreter]

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ABA Model Rule 5.3: Responsibilities Regarding Non-lawyer Assistance

Law Firms And Associations

With respect to a non-lawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts

to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules

of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action

ABA Model Rule 1.6: Confidentiality of Information

Client-Lawyer Relationship

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in

furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

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(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations

in any proceeding concerning the lawyer's representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of

employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure

of, or unauthorized access to, information relating to the representation of a client

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Claudia Viera Gabi Handler Marks All Rights

Video‐Conferencing Tips

In Investigations Involving Non‐English Speakers

Video‐Conference Interviews

• Coordinating with interpreter over Zoom may be more difficult/easier than in person

• Viewing documents is more challenging: cell phone screens are too small to review/see documents presented

• Witness may not have access to a computer or solid internet connection

• Various platforms needed depending on device

witness will use

• Platform for international locations (e.g., What’s

App)

• Time zone considerations

• Witness may not have privacy from family

• Be Flexible ‐ locations may be creative (e.g. a car)

• Witness may lack immediate access to hardcopy work documents

• Biggest challenge: Investigator cannot easily view telephone text messages or photo/video evidence, nor take her own video of the offensive messages

Best Practices For Investigations Involving

Non‐English Speakers

Andrea Kelly Smethurst

Gabrielle Handler Marks

Claudia M. Viera

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SPEAKER BIOGRAPHIES

Claudia M Viera, Esq

Viera Mediation & Law

Attorney Investigator, Mediator, Trainer

www.vieramediation.com

Since 1998, Claudia Viera has conducted workplace investigations of harassment,

discrimination, retaliation and other claims She has investigated claims involving high-level corporate executives, CEOs, mid-level managers and line employees, in both union and non-union work environments Claudia conducts investigations in English and Spanish, and has worked with Fortune 500 companies, start-ups and non-profits She also has substantial

experience in training executives 1-on-1 after accusations of harassment, or mediating in

workplaces post-investigation Her Spanish language skills and experience abroad make her especially useful in investigations or mediations of a cross-cultural nature

Claudia previously practiced employment law at Littler Mendelson in San Francisco, where she dealt with a variety of labor and employment issues, including disputes arising under Title VII, the Family and Medical Leave Act, the Americans with Disability Act, wage and hour laws, employment contracts and a variety of California state statutes At Littler, Claudia also trained thousands of managers and employees nationwide on harassment prevention and other

employment law and conflict resolution topics She also honed her skills as a neutral fact-finder

by teaching Human Resource managers to conduct lawful investigations using live actors

Gabrielle Handler Marks

Hulst & Handler, LLP

Attorney Investigator

https://hulsthandler.com/

Gabrielle Handler Marks (Gabi) focuses her practice on conducting impartial workplace

investigations, Title IX investigations in college environments, and investigations at elementary, middle and high schools

Drawing on over 15 years of litigation experience before founding Hulst & Handler LLP with her business partner Rachel Hulst, Gabi brings expertise investigating and evaluating claims in a variety of contexts to conduct fair and effective investigations She has investigated a wide range

of claims, including claims of discrimination, sexual harassment, sexual misconduct and assault, hostile work environment, retaliation, bullying/abusive conduct and ethical violations

Gabi attended AWI’s Training Institute for Workplace Investigators and completed training in conducting Title IX investigations She has published articles about investigations in the AWI Journal and has presented about investigation best practices to numerous employment attorneys Gabi is experienced in utilizing interpreters to conduct investigations involving non-English speakers

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Gabi earned her undergraduate degree in English Literature from the University of California, Los Angeles and her law degree from the University of California, Hastings College of the Law Born and raised in Cape Town, South Africa, Gabi enjoys giving travel advice to all who wish to soak up the wonders of sunny South Africa

Andrea Kelly Smethurst

Andrea Kelly Smethurst Law, P.C

Attorney Investigator

www.andreakellylaw.com

Born to Argentine parents, Andrea Kelly Smethurst’s first language was Spanish Andrea’s ability to speak Spanish and connect with Spanish-speaking witnesses has been a rewarding part

of her practice since before law school when she volunteered as an interpreter for refugees seeking asylum After attending the University of California, Berkeley School of Law, Andrea worked as a Labor and Employment Associate at Sheppard, Mullin, Richter & Hampton and Dillingham & Murphy At both firms, she used her Spanish to interview witnesses

Andrea began her investigations practice in 2001 Since then, she has conducted hundreds of investigations in the workplace and K-12 and college campuses She regularly conducts

investigations in which she interviews witnesses in Spanish She has also provided harassment prevention training in Spanish to thousands of employees

Andrea serves as an expert on workplace investigations, training, and other employment-related matters She has served as an Equal Employment Opportunity Monitor for employers required

to implement a monitoring program As a monitor, Andrea has overseen employer compliance with harassment and discrimination training requirements, developed complaint procedure policies and procedures, and overseen employer response and investigation of employee

complaints

Andrea is certified as a Title IX investigator and also is an Association of Workplace

Investigators Institute Certificate Holder She is on the faculty of the Association of Workplace Investigators Training Institute

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