Anthony Pellicano may have supplanted Sam Spade as the most widely recognized private investigator, albeit Sam was fictional, although Pellicano seems so. The National Law Journal hyperbolic headline, Christensen Case a ‘Wake-Up’ Call for Lawyers on Use of Private Eyes, suggests that the Pellicano/Christensen matter is stirring an otherwise somnolent crowd, causing attorneys to be more attentive to their relationship with investigators (perhaps more so due to the criminal charge against one of their own). But, really people, other private investigators are not conducting illegal wiretaps or audio recordings, making threats to opposing parties in litigation or conspiring with their attorneys to do any of the above. This is truly an anomaly.
Still, attorneys and investigators in many cases don’t clarify the investigative approaches that may be employed. This could be essential as a matter of law, regulation, ethics or just good sense for the case at hand. For example, an attorney may ask her investigator to locate assets on an opposing party. Is the other party a judgment debtor or is the request a pre-litigation check? Does it matter?
One attorney in the story says, referring to the Pellicano/Christensen (and Hewlett Packard case) prosecution, that it has “woken up some lawyers as to what their liability, criminal or civil, may be with regard to private investigators they’ve hired.” And another: “you can’t just let your investigator go out there and investigate and take the fruits of what he provides and use it”. Those are sound conclusions.
Assume we all agree that wiretapping and conspiring to commit felonies is a very bad notion. What does Christensen Case a ‘Wake-Up’ Call suggest attorneys and their investigators should talk about to be sure that the investigator doesn’t just “go out there “? Well…nothing! There were no specifics included in the story. Here are a few of my own:
* What can, should or shouldn’t be stated to witnesses about the case?
* Are there involved parties who shouldn’t be contacted?
* Which information gathering methods mustn’t be used? Name them.
* Are there categories of records that the investigator should not obtain?
Have you talked with your attorney or investigator on ethical investigative methods?
I have always operated under the assumption that if the case is going to be in court–whether civil, criminal or family law, my methods better be squeaky clean. And I can say that 100-percent of the attorneys for whom I work operate under the same assumptions. Rick, you made excellent points that a good investigator can find the same information legally but that it might take more time and effort. Our credibility is really the only commodity we have at the end of the day. Any attorney worth his salt is going to know the type of investigator he is instilling with his trust.
Private Investigators have as much of an obligation to work cases in a legal and ethical manner as do the attorneys that they work for. It is only smart to have more than a cursory knowledge of the law if you are going to work Criminal Defense Cases. Clear and documented communication between the P.I. and the attorney you are working for is vital, this is protected under the work product doctrine; so there is no need to be “cryptic” with the attorney you are working for. These communications normally go to case strategy that is the basis for protection under the work product doctrine.
The work product doctrine will NOT protect you if you are gathering evidence by illegal means (i.e. pretexting for a consumer’s private financial records), as the work product doctrine is NOT privilege (i.e. attorney-client privilege) and has less power than privilege; all an attorney needs to do to bring out this type of material that an attorney is trying to protect under the work product doctrine is demonstrate to the court that there is no other way they can obtain the material than compelling it, and that it goes to significantly support their client’s claim in court.
I have come to realize that there are some P.I.s out there that are actually more knowledgeable about the law in their specific area of expertise than the attorneys they work for, due to experience. In some cases the attorney might be asking the P.I. to do something that he or she is not even aware of as being illegal. This is why it is important to know the law as it applies to your cases, the rules of evidence, your court’s procedures, and how to use the tools that the court provides for you to gather your evidence with (i.e. subpoenas).
Thee is nothing that a good P.I. can’t get his hands on legally, that a “bad P.I.” can get his hands on illegally. it may take a little more time, but a good P.I. can achieve just as much as an unethical P.I., as long as he understands how to use the tools that are there for him to use as provided by the court.
Pellicano was a “slipshod Investigator”, that is why he had to conduct himself like a “thug”, and break the law to gather information (hard to call it evidence, as most of it never saw a court room, and was instead used to blackmail people with). How he gathered information is a sign of how poor of a Private Investigator he really was.
My concern in the attorney/investigator relationship is not so much “whose ethics prevail as to how it’s used”, but what is the conversation we have with each other before we arrive at that point. The investigator may participate in mapping the case strategy, making recommendations, gathering information, etc., but the attorney will decide how, and if, she wants to use it.
As Ely said, “make sure to lay out for them what your obligations are – some may just not know about them.” It’s often incumbent upon the investigator to educate the attorney and to raise the topic of information gathering methods. I’ve regularly had the experience of telling the lawyer who asks for a specific type of information that it has to be collected within the terms of, for example, the Financial Privacy Act, and have them say that they don’t know what that is. I’ve explained it, they say that they don’t want to do anything that may be legally suspect, and then we go on to do the investigation that we can. But investigators shouldn’t hold back from informing the attorney about their proposed information gathering methods. Put the responsibility in their hands.
I’d add to your list Tamara:
*exactly how do you want information reported? (for some attys/cases it’s crucial that work products don’t have the word “report” in them and other times an atty may not want work product generated at all; it’s good to get clear on their expectations first)
* is there information that, if uncovered, atty doesn’t want to know?
* if atty asks you to get info that could only reasonbly be gotten unethically (either due to legal or time restrictions) make sure to lay out for them what your obligations are – some may just not know about them.
The point is that a PI should not rely on the attorney to set any objective ethical standards. Best example: Attorneys are advocates whose ethical system allows for suppression of privileged information that could help convict their client. When an otherwise ethical PI digs up that information from an independent source, guess whose ethics prevail as to how it’s used.
I have been working criminal defense cases for over 13 years and have not lost an attorney client for refusal to perform illegal or unethical activities. This may be due to my working mostly in a small town, rural area where I know the attorneys, judges, prosecutors and law enforcement. In the long run, conducting legal, ethical investigations has allowed me to develop a reputation that has bolstered my business.
Most defense attorneys want two things: That you get as much relevant information as you can, regardless of how you got it. That you do not get caught getting any of it illegally. Otherwise it’s pretty much ethics, schmethics in that area. “Work product” is their magic cloak here.