Often times, when a dispute first arises, even before litigation has begun, one or both sides will hire counsel to assist in trying to resolve the dispute. Even if counsel is not retained at that early stage, however, once litigation is instituted, in most cases neither party appears pro se. In many jurisdictions, a corporate party is not even permitted to appear pro se. Litigation then proceeds with opposing counsel handling all aspects (albeit in consultation with their clients).
Scientific research misconduct cases proceed quite differently. While the ideal scenario is for a scientist to contact an attorney as soon as he or she finds out that misconduct allegations have been made and will be pursued by the institution, things do not always work out that way. Fortunately for scientists, attorneys are able to provide assistance, no matter what stage the proceedings are in when a scientist might first seek counsel. In our practice, we are retained by scientists at various stages of their misconduct proceedings. Sometimes, we are retained to represent a scientist soon after the scientist learns that a formal inquiry will be conducted. Often, however, a scientist will try to manage much of the process on his or her own, especially in the early stages. In some cases, we have not been retained until very far into the process. We have had cases in which the scientist represents himself/herself and retains us after the investigation has already been completed. This means that the scientist has not had counsel during the preliminary assessment of allegations stage, the formal inquiry (during which the scientist and other witnesses may have been interviewed, a formal report is drafted by the institution and given to the scientist for comments, followed by the issuance of Final Inquiry Report) or even sometimes the investigation (during which there are more interviews, the issuance of a draft report, opportunity for comment, and then the issuance of a final report). When we are hired at a late stage, it is usually when the evidence gathering part of the investigation is concluded and the Investigation Committee has already issued, or is about to issue, a draft investigation report.
Much of the process between the allegation stage and the Final Investigation Report stage is dependent on the science itself – Were images duplicated? Were images spliced? What were the results of the experiment? Does the legend for the figure in the manuscript accurately depict the experiment? Are reported results truly representative of the experiment conducted? We, as counsel, do not have the scientific expertise to answer such inquiries. Thus, in that respect, the scientist is more than capable of addressing such issues on his/her own. This is especially true considering that the members of the inquiry and investigation committees are scientists, not attorneys. Thus, the inquiry and investigation are very science focused. However, the science portion does not proceed in isolation. Procedural issues that are appropriately handled by legal counsel can arise at any stage of the process, and there can be significant consequences to the scientist’s decision to wait until later stages before hiring counsel.
For example, sometimes an institution will fail to provide the scientist with access to the interview recordings or transcripts and the scientist might be unaware that he/she is entitled to access. The scientist may be submitting written comments (to the draft inquiry and draft investigation reports) without the benefit of knowing what any of the witnesses stated during their interview. Often scientists are not aware that research misconduct is defined in a certain way; that it is the institution’s burden to prove scientific misconduct by a preponderance of the evidence; and that part of what the institution must prove is that the scientist acted intentionally, knowingly or recklessly. The scientist in his or her comments to a draft inquiry or draft investigation report may do a great job of defending against the scientific portion of the allegations, but is not able to do as well in then explaining why the Institution has failed to meet its burdens under the Institution’s policy and applicable federal regulations (where the research was federally funded). The earlier we get involved in the process, the sooner we are able to help ensure the investigation is handled properly and that the final inquiry or investigation report accurately reflects the truth. This is especially important in cases involving federally funded research because at the conclusion of those investigations, the final report as well as any written submissions we have made on the client’s behalf are provided to the federal agency in charge of oversight of federally funded research. For example, if the research was funded by Public Health Service grants from the Department of Health and Human Resources, final investigation reports and our comments would be sent to the Office of Research Integrity. We have the opportunity to continue to advocate on the scientist’s behalf when it reaches the oversight review stage.
Hopefully no scientist will ever conclude that it is probably just too late in the game to get an attorney involved in a research misconduct proceeding. No matter what stage the misconduct proceeding is in when a scientist seeks the advice of an attorney, an attorney can have a positive impact on the process and the outcome.
Paul S. Thaler is the Managing Partner in the Firm’s Washington, D.C. office, co-chair of the Internal Investigations Group, and a member of the ADR and Commercial Litigation Groups.
Karen S. Karas is Senior Counsel in the Firm’s Washington, D.C. Office and is a member of the Commercial Litigation and Internal Investigation Groups.