“The ABA should make clear that there are high penalties for failing to ensure a private investigator is behaving in an ethical manner, and that corrective action will be taken against those who fail to do so.”
There are many hats that a lawyer wears in the course of representing a client, such as, assessor of the dispute, definer of issues, strategist, psychologist, economist, and negotiator, among many others. And certainly, gathering additional facts and seemingly hidden evidence can be crucial to achieving a positive outcome for your client.
But alas, there is only so much legwork the attorney can do on his own or her own, and that’s where the services of a professional investigator come into play. Whether interviewing witnesses in the field, photographing the activities of a putatively injured plaintiff, or pouring through megabytes of cyber data, a fresh set of eyes and a new perspective on the analysis of the facts collected can be of immeasurable value to the attorney. We will examine the mechanics of engaging a private investigator (PI) as well as the ethical considerations involved.
Playing by the Rules
Think ‘Private Investigator’ and a whole slew of iconic TV shows likely come to mind. However, unlike the classic gumshoe who may have very well engaged in breaking and entering, illegal wire-tapping, or invasions of privacy, the PI hired to assist a law firm must be mindful of the admissibility of the gathered evidence in a court of law or before an Intellectual Property arbiter, or similar legal or quasi-legal body whose procedures are governed by rules of evidence. Accordingly, the goal is not just to collect the evidence but to get it admitted.
In fact, the work done by a professional PI who has been trained in the collection of evidence for litigation purposes is so indispensable to the trial attorney that most major litigation firms throughout the country either have a PI on staff or have such services regularly engaged on an independent contractor basis.
Most Common Cases for Legal PIs
Most PIs working for lawyers (also termed legal investigators) perform their work in connection with personal injury cases. Their function is to determine responsibility for what happened and to report on the veracity of the claimed injury or incapacitation. But the PI also plays a key role in criminal defense cases where facts protecting the accused’s Constitutional rights and guarantees are of paramount importance. Beyond those two fields, the services of a PI can be pivotal in any type of litigation where the professional collection of admissible evidence is needed.
Increasingly, PIs are being called upon to gather evidence related to Intellectual Property disputes, where they are playing a crucial role in protecting brand owners from infringement, lost revenue, brand dilution, market confusion, and damage to reputation. The theft of trade secrets, whether by a departing employee or a current one, is also a situation that frequently calls for the services of a PI to ferret out what secrets have been leaked and who within the organization is responsible for such a leak. Modern-day PI techniques are not limited only to interviewing witnesses, taking photographs, analyzing crime scenes and recording videos, but also conducting online monitoring and engaging in cyber-forensics as well.
ABA Rules and Non-lawyers
In 1969 the ABA issued Opinion 316 in which it approved the use of non-lawyer, lay legal assistants by attorneys. However, Model Rule 5.3 further clarified that ‘a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and, the lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.’ Obviously, Rule 5.3 extends to the use of PI services by a law firm, and accordingly, the conduct of the non-lawyer PI can be imputed to the professional liability of the lawyer.
Such a risk was rather recently underscored in the case involving attorney David Boies of Boies, Schiller, Flexner, LLP, who was accused of making inappropriate use of a PI in the course of defending Harvey Weinstein against charges of sexual misconduct. The lawyer allegedly hired PIs to go undercover to meet with both accusers and New York Times reporters in order to collect details of the reporting. Mr. Boies subsequently expressed regret over the use of the tactic, calling it ‘a mistake.’
A Call for PI-Lawyer Reform
Aside from the Weinstein episode, another headline-grabber on the topic of lawyers and PIs arose when Washington Commanders owner Dan Snyder allegedly used questionable tactics in fending off a collusion accusation involving the NFL Commissioner. Snyder apparently employed a law firm to hire a PI who harassed dozens of former team employees in order to counter allegations that Snyder deceived fans regarding the NFL’s investigation into the team’s allegedly toxic workplace culture and accusations of sexual assault. According to Ally Coll, co-founder of the Purple Campaign, a nonprofit addressing workplace harassment, the recent ethics issues involving lawyers and PIs signal the need for the ABA to take another look at the ethics of lawyers employing PIs.
Striking A Balance
There is no doubt that the legal PI plays an important role in gathering evidence and in presenting facts to the attorney that can serve the best interests of and protect the rights of the attorney’s client. However, at the same time, a balance must be struck between those rights and interests of the client and the ethical responsibility owed by both the lawyer and the PI in obtaining that evidence.
Executive Summary
The Issue
What are the practical and ethical ramifications of a lawyer’s employment of a private investigator to assist with a case?
The Gravamen
The PI can and does play a critical role in assisting the attorney in both civil and criminal matters, including oftentimes offering a fresh set of eyes and analysis.
The Path Forward
As a non-lawyer engaged by a licensed attorney, the PI’s conduct is imputed to the attorney, and both can be held responsible for ethical failures.
Action
Know the Model Rules:
ABA Model Rule 5.3, which governs the employment of non-lawyers, must be studied so that the lawyers of the firm all understand the ethical implications that can arise when utilizing the services of non-lawyers.
Firm’s Policies on PIs:
In order to adhere to Rule 5.3, the firm must adopt measures so as to ensure reasonable assurance that the non-lawyer’s conduct is compatible with the professional obligations of the lawyer.
Why Hire a PI?
The ‘law’ is typically considered an abstraction that requires tangible facts to make it operable; by utilizing the services of a PI, the lawyer can make the case on behalf of his or her client that the judge or jury can understand.
21st Century Forensics:
Intellectual Property cases are increasingly dependent upon collected market data and cyber forensics, all assembled by specialized PIs, in order to prove injury-in-fact to a client’s IP rights.
Further readings:
- https://nalionline.org/legal-investigator-defined/
- https://lawrenceryaninvestigations.com/blog/why-do-lawyers-hire-private-investigators/
- https://www.lawline.com/course/using-private-investigators-ethical-and-legal-considerations
- https://www.hg.org/legal-articles/a-lawyer-s-perspective-best-uses-of-a-private-investigator-42782
- https://pursuitmag.com/ethics-and-the-law-for-private-investigators-an-overview/
