Independence Of Government Department As Investigator And Attorney General As Counsel Raised (In This Example – In Regard To The NY Nursing Home Investigation)

David W. Tate, Esq., San Francisco and California –

Investigator independence or lack of conflict of interest, and the independence or lack of conflict of interest of legal counsel representing the investigator are important and can carry significant legal ramifications, in addition to the optics that are presented and possible issues of investigation trustworthiness in the particular situation.

As I have written, these are issues that should be considered and vetted while initially forming the investigation team, and throughout the investigation as the issues and the situations that are being investigated, and the people and stakeholders who are at issue or who are involved can change and expand or grow.

See pasted below a snapshot of an article out of New York discussing an investigation of nursing homes that was recently ordered by the Governor. The investigation is being done by the state Health Department which is being represented by the Attorney General’s Office. Some people have questioned whether the Health Department and the Attorney General are the appropriate departments or offices to be involved in the investigation in this circumstance. In addition to the departments or offices that are involved, I will add that interpersonal relationships can also be or become an issue.

While the Health Department certainly is an appropriate department to conduct a nursing home investigation, and the Attorney General’s Office appropriately represents the Health Department, as it has been noted, in the current investigation it is possible that the policies of the Governor and/or the policies and procedures of the Health Department with respect to COVID-19 and nursing home residents might be or become in play. And as also noted, the situation could be akin to the investigator and its counsel investigating their own policies and procedures or those of their boss. These are issues or possible issues to consider in every investigation depending on the facts and circumstances of the particular situation, and as the fact and circumstances might change over time and during the course of the investigation.

Best to you, Dave Tate, Esq. (San Francisco and California) –


Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

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Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.


Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

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