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?