Coal Tattoo

Will Massey lawyers get into the interviews?

In her big op-ed piece this weekend, Labor Secretary Hilda Solis made a pretty sweeping statement about the way her Mine Safety and Health Administration plans to conduct its investigation into Massey Energy’s Upper Big Branch Mine Disaster:

… I have made it clear that company officials and company lawyers will not be allowed in the room during interviews …

There’s just one problem: Based on MSHA’s own investigation interview guidelines — a document the agency has carefully not posted on its Web site or discussed publicly in any real detail — what Solis said in the op-ed simply isn’t true.

I’ve posted these guidelines here, so take a look … There are any number of ways that Massey’s lawyer can get into the interviews

The document makes a perhaps sincere, but nonetheless confusing, statement about this whole situation:

Massey Energy has acknowledged that its counsel is not providing personal representation to any company employee. The company and its attorneys thus will not be permitted in or attend interviews as the duly authorized legal representative of any employee witness.

OK … If that’s the case, then why did MSHA need to add a bunch of other language, describing situations where, in fact, Massey lawyers — or lawyers paid by Massey — would be allowed in the room?

— Right there at the top — If a “management witness” is being interviewed, they have a right to have their own “duly authorized personal representative and/or company legal representative” in the room with them.

— A personal representative who is directly or indirectly provided or paid by a third party including Massey Energy Company, may represent a non-management witness at an interview only if doing so does not in any way compromise the representative’s duty of loyalty, confidentiality, or professional independent judgment to the witness.

In this instance, the MSHA document then lists six different tests that must be met, including the witness having given their “informed and written consent” to having the company lawyer in the room, and the lawyer being prohibited from communicating with Massey about “the substance of the representation.”

But then, there’s this kicker:

MSHA may also permit such representation if it determines in other circumstances that the representative’s duties will not be compromised by such an arrangement.

That appears to give MSHA broad authority to allow company lawyers in the room based … why would the agency need to have that in the guidelines if, as Secretary Solis said in her op-ed:

… I have made it clear that company officials and company lawyers will not be allowed in the room during interviews …