This is a guest post by Matthew Brotmann, Esq., founder of B4 Strategic Solutions.
The reason most people choose to retain the services of a private investigator is to gain access to information they would not otherwise have access to. After all, that’s what they’re there for.
But what happens when the private investigator gains access to information he or she should not have or uses methods to gain access that are questionable or downright unethical?
This is an issue, which has particular significance to attorneys or those bound by ethical constraints as part of their professional practice. Recent headlines have drawn attention to this matter and it is worth further consideration.
Quite often the use of a private investigator makes sense from a strategic and financial perspective. The private investigators expertise means they may be able to dig up relevant information efficiently and a cost effective manner. Particularly when the alternative is to have highly paid associate attorney attempt to gather that same information through a series of Lexis and Google searches. Even worse, you have to spend doing the research yourself. Thus, the private investigator. But, unlike you or your young associate, the private investigator may not be subject to the same ethical considerations as you.
Crack-Down on “Hackers-for-Hire”
Recently, federal prosecutors have been cracking down on private investigators who have been functioning as “hackers-for-hire.” In other words, the investigators have been retained by law firms to gather information for a pending case and have gone beyond the ethical limits of where an attorney himself or herself could go.
In one case, federal prosecutors have charged two private investigators in the San Francisco area with hacking into email and Skype accounts in order to obtain information for pending matters. Whether or not the attorney knew that they would use this “backdoor” has yet to be established but either way, it doesn’t look good and any perhaps more importantly, evidence gained in this manner may be inadmissible.
Whether it be “pretexting”, in other words, pretending to be someone you are not to obtain private details, hacking or any other method that would not be permissible for an attorney, the attorney retaining that private investigator can be held responsible for this conduct and pay the price. It’s not OK to turn a blind-eye without delving into how the information is gathered. And, it’s not OK for a lawyer to hire a private investigator to skirt the law in a way that gives them plausible deniability of any potentially illegal or unethical activity.
More often than not, using the “front door” to gain the information can be just as productive, particularly when the person walking through that door is an experienced private investigator. In addition, information gained in this way does not run the same risk of exclusion at trial.
Ultimately, it is up to private investigator and the attorney (or anyone retaining a private investigator) to discuss ethical constraints and expectations. These conversations should be memorialized in writing so that there is no misunderstanding down the road.