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Ethical Considerations When Hiring A Private Investigator
By: Michael J. West |
The partnership between attorneys and private investigators is an important one. When you need an asset search, background check, fraud analysis, or other specialized research, a qualified professional investigator has the skills and resources to do the job for you more efficiently than you can do it yourself. However, when you hire a private investigator you bear some risk of ethical infraction, especially if you fail to clarify your professional code of conduct to the investigator and provide oversight to ensure his or her compliance.
As stated in section 5.3 of the ABA Model Rules of Professional Conduct:
5.3: A lawyer must make reasonable efforts to ensure that those over whom the lawyer has supervisory authority act in a manner compatible with the professional obligations of the lawyer. A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer, if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.If you hire a professional investigator in the course of case development, you need to understand how you can both benefit from their investigative expertise and comply with the Arkansas Rules of Professional Conduct and the ABA Model Rules of Professional Conduct. Arkansas Investigations is offering an approved, free Ethics CLE course designed to help you do just that. Ethical Issues Relating to Hiring and Working with Private Investigators provides a detailed overview and discussion of the types of unique situations that can arise when attorneys employ the services of private investigators.
For example, it is incumbent upon you to understand how evidence gathered by investigators may or may not be admissible in litigation. Failure to communicate clearly to a hired investigator can devastate your case and your reputation. An investigator who lacks clarity may misinterpret your needs and expectations and may present a situation in the case that is irrelevant or flatly harmful to your client.
Alternately, an overzealous investigator may be willing to do whatever it takes to get the requested information, without regard to ethical violations. You, not the investigator, are liable for the consequences of their exuberant compliance.
As stated in section 4.4 of the ABA Model Rules of Professional Conduct:
4.4: A lawyer shall not use methods of obtaining evidence that violate the legal rights of a person.And in section 8.4(a):
8.4(a): A lawyer may not violate or attempt to violate the rules of professional conduct through the acts of another.Your interest in working with a professional investigator is almost certainly motivated by a desire to provide comprehensive counsel to every client. When you consider the time, energy, and determination you devote to each individual case, it seems obvious that you owe it to yourself and your clients to take this free course and learn how you can work successfully with private investigators.
Michael J. West is a Certified Fraud Examiner, a Certified Law Enforcement Instructor and an experienced legal investigator in Arkansas, Louisiana and Oklahoma. With 33 years of investigative experience, Mr. West has worked with commercial firms, local, state and federal agencies including the Department of Defense (DoD) Inspector General's Office, the US Attorney, the Air Force Office of Special Investigations and others. He is considered an expert at evaluating the investigative practices of investigative agencies.
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