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This week, Ronan Farrow, the investigative reporter, published a three-part series (read Part I here, Part II here, and Part III here) on the Israel-based “intelligence firm” Black Cube, whom Farrow had some run-ins with while exposing Harvey Weinstein.

It’s a pretty captivating story if you are into espionage, spies, surveillance, intrigue, counterintelligence, spooks, and snooping—or if you just have a pulse. ;)  

This has been a huge personal interest story for me over the years that Farrow and others have been writing about Black Cube in part because of their shady tactics and Hollywood-style bravado. [I’d bet my life there will be a movie about them in a few years.]

Another point of interest is that I have personally spoken to Black Cube. While my discussions with them were completely cordial and above-board, I can recall pretty vividly how suspect I was of the firm, even from a few brief emails and telephone calls. In addition, I have had contact with a few other people mentioned in the story.

As a private investigator for nearly 20 years, I was at times shocked, partly saddened, but mostly captivated by the stories in the articles. I’ve already preordered Farrow’s book (you can order Catch and Kill here), as I am sure that will bring more shock and awe.

So, here are some observations.

“That Only Happens on TV”

Private investigators suffer from a perception problem (Hint: 95 percent of the people we polled think that private investigators break the law and are “shady.”) Despite discussing openly all of the things that our firm won’t do under any circumstances, we constantly get inquiries about those same things. We’ve been asked to break into an apartment and steal tax returns. We get asked frequently to hack into emails and get telephone records or the location of a cell phone.

Most of the time, I answer these inquiries with some form of “you have been watching too much TV. That’s just not reality.”

But then, Black Cube went and ruined that.

They used ruses, fake websites, false identities, cell phone tracking, and disguises. I get that this stuff happens in the high stakes game of world politics. Or arms dealing. Or drug lords.

But really? This happens in our industry?

But here is the reality.

I have worked with dozens of other firms in the industry. Some of the best and the brightest that this business has to offer. I’ve worked on cases that have been front cover of major newspapers.

Exactly zero of them would have used any of the tactics described in these articles.

So does one bad apple spoil the bunch? Sure.

But this is not an isolated incident…

An Industry in Desperate Need of Some Sunshine

There is an enormous amount of skepticism about the investigation industry. Frankly, it’s a reputation well-deserved.

I just posted a blog last week about three separate front-page news stories involving private investigators who use sketchy tactics. And there are a lot more stories of private investigators being sentenced for making false pretext calls to get personal banking information, a private investigator having sex with a prisoner, and scrutiny about private investigators receiving DMV data.

That was just in the month of September.

Our industry can use a whole hell of a lot of sunshine.

Back in May 2019, a former TV personality private investigator was jailed for promoting prostitution and unlawful surveillance for enticing a man into having sex with prostitutes at a Sunset Park hotel—and then surreptitiously recording the sex acts.

You just can’t make this stuff up.

As Cath (@drowsygeek) said on Twitter, our industry can use a whole hell of a lot of sunshine.

Yes, we can use a who lot of sunshine…and rainbows, butterflies and unicorns too.

Results-oriented Business

If you hire a contractor to build you a house, at the end of the day, you expect a house to be built.

If you hire an accountant to help you file your tax return, you expect your taxes to be completed.

Or if you hire a software engineer to help you produce a piece of software, one would expect a piece of working software at the end.

But if you hire a private investigator to, for example, follow someone that you believe is meeting with some people that you might have an interest in, and you need to follow that person in a city of millions of people under difficult circumstances without being caught, lots of things can go wrong.

The surveillance investigator might lose the person they are following or get caught, or the target might go into a place where they can’t be followed, or simply not meet up with the people they are suspected of meeting. And what you might have thought would cost a few thousand dollars, ends up costing tens of thousands of dollars to do properly. And even done properly, everything might go to hell.

Each of those scenarios brings disappointment to the client.

So what do some investigators do to mitigate their failing results?

They might cheat by resorting to not-so-savory tactics. They might start putting GPS devices on the cars they are following (see stories here, here and here). Track cell phones. Try to hack a computer.

I’ve heard of surveillance investigators letting the air out of the tires of those collecting disability to see if they can change a tire.

There are private investigators who will pretext a bank by providing a Social Security number, date of birth, and other personally identifiable information to a bank to convince them that they are a particular individual in order to get their bank account information.

Investigators get judged by their results, not their efforts. But we don’t always have control over the results of our investigations.

It’s frustrating. Exhausting. Dispiriting.

Which brings out the cheaters.

Leave the Bonus Fees to Wall Street

One of the striking stories that came out of these articles was bonus fees tied to certain objectives. First, in New York, where we are licensed, “success fees” and bonuses are not allowed.

Success fees and bonuses encourage bias and behaviors that may not be aboveboard.

Imagine paying an investigator when he was able to come up with evidence that helped support his client.

What kind of biases and/or moral, ethical, and legal behavior do you think that would encourage?

If you ever hear of paying a private investigator suggesting a bonus, run.

Whistleblowers

There has been quite a bit of talk about whistleblowers over the past few years, and particularly recently.

This story would not have even been a story if it weren’t for at least two whistleblowers. One appears to be a Black Cube employee who was fed up with Black Cube’s “false and devious ways of obtaining material illegally” that the whistleblower, as a woman, was “ashamed for participating” in the acts by helping Harvey Weinstein.

The other is a New York private investigator who feared he was on the wrong side of the law.

These whistleblowers were motivated by professional ethics and faith in humanity. The reality is that whistleblowers shed light on pressing issues that directly affect all of us. Some call them leakers. Some believe they are disloyal, disgruntled, or even traitorous. Some question their motives.

To me, however, someone who is willing to risk everything to expose something so blatantly wrong is a freaking hero.

Hopefully it will shed some light on this business too.

Final Thoughts

Maybe I am naïve to think that this stuff doesn’t happen all the time.

Maybe I live in some idyllic world where the truth will always come out.

Or that reasonable people will always act ethically, morally, and within the law.

And maybe Black Cube is just eating up every bit of this press, since there are businesses who believe that “there is no such thing as bad publicity.”

As for me, I hope that this story gives all of us in this industry a chance to take a hard look in the mirror.

Before it all crumbles around us.

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Not every person, corporation or law firm needs to hire a private investigator on a regular basis.  Realistically and thankfully, a private investigator is not someone that everyone has on speed dial.
But if a situation requires one, before you hire a private investigator, take into consideration these questions:
What is your objective?Are you trying to find someone, collect on a judgment, determine if it’s worth suing someone or perhaps investigate a complex matter? With some cases, the specific objective may be obvious, but often clients are not sure what they really want. Having an ultimate goal or objective before you hire a private investigator can help control costs and focus the investigator in the right direction.

Do you need subject matter expertise?

Investigators often have a specialty. These include surveillance, matrimonial cases, insurance disability matters, internal fraud investigations, adoption, computer forensics, forensic accounting, litigation support, due diligence investigation and background checks.  Hiring the wrong investigator for the wrong job may doom your case from the start. Before you hire a private investigator make sure the investigator you hire has a proven track record in the area you present to them.

What do you already know?

It’s important to collect every relevant piece of written or electronic information in your possession to provide to the investigator. Also, be sure to tell them everything you know—even if it’s not written down. This insures that the investigator has the best tools to be effective and efficient so that they can hit the ground running.

How will the information be used?

Are you trying to get information for your own use or do you anticipate litigation relevant to the information?  In the first instance, it may be appropriate to deal directly with the investigator, but if there is litigation in the works, your investigator should be retained by an attorney to protect work product privilege.

What are your expectations?

We all love a good Sherlock Holmes novel or an old episode of Colombo, but it’s called fiction for a reason. Understanding what the investigator can legally, properly and ethically do will save you from unrealistic expectations and trouble down the road.

What are the risks if inquiries become known?

What if the investigator is caught digging around? If the inquiries the investigator is making are exposed, what’s the backlash?  Think this through. This is key to developing a leak proof investigative strategy to avoid embarrassment or worse.  An investigative approach depends on the sensitivity of the case—make sure you and the investigator are on the same page about technique. Is it necessary to take every precaution and be sensitive or can the investigator go in with guns blazing?

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Hiring a private investigator is probably not something you do every day – not every attorney, investor, fund manager or individual has a private investigator on retainer.

In fact, you may rarely find yourself in a situation where you need a private investigator.  However, those tend to be the situations where it really counts.

Of course you want the best investigator you can get…but what does that really mean?  Here are some questions you should ask before hiring a private investigator.

Are you licensed and insured?

Every state has different requirements for licensed private investigators and the scope of the work they may perform.

Both the client and investigator have a responsibility to be aware of the laws in the states where the investigation is to be performed.  Investigators should also be able to provide proof of liability insurance.

Can you provide references and work samples?

Most experienced private investigators will be able to provide you with references and samples of several different types of cases.

It is important to understand that, due to client confidentiality, there is a good chance that work samples will have identifying information redacted or the facts of the case changed to protect the subjects’ identities.

However, samples are helpful to see the quality of the reports, the thoroughness of the investigation, and the various sources utilized by the investigator.

Who will handle my case?

In many cases, the experienced professional private investigator will manage the case and delegate lesser investigative tasks – or even the entire case – to other individuals.

It’s important that you know who will handle the case, and request information about their experience and background.

Request examples of their prior work and obtain an understanding of how closely the primary investigator will supervise the case.

As we’ve noted here previously, if there is an international component to the case, you need to ask your investigator detailed questions about the capabilities of the investigator’s international contacts (see related post International Background Investigation – What You Need to Know).

Do you belong to any professional organizations?

Many investigators belong to membership organizations such as the Association of Certified Fraud Examiners (ACFE) or the National Council of Investigation and Security Services (NCISS).

These organizations offer rigorous training and certification for investigators, have codes of ethics, and other education and experience standards for membership.

Do you use “shady” or unethical methods to obtain information?

Between a fully above board investigation and illegality lies a vast grey area.

Over the years, many clients have found themselves embroiled in scandal because of their investigators (e.g., HP , Anthony Pellicano, and others).

It is important to set parameters for your investigator at the outset – ideally through an engagement letter that explicitly outlines your expectations and requirements before.

Both you and your investigator should be aware of the laws in the jurisdiction where the investigation will occur.

Will our communications be privileged?  Do I need to tell you everything?

Privilege laws for investigator-client communications also vary widely by state.

Clients and investigators should be familiar with the particular laws in their state.

When it is an attorney who retains the investigator, additional legal work product and communications privileges may apply.

Of course, an investigator does not need to be told every detail.

However, providing the investigator with adequate information before hiring a private investigator, and throughout as new developments occur, will increase the likelihood of an efficient, thorough, and successful case.

Summary

Hiring a private investigator is not something that most people do every day. Asking the right questions before hiring a private investigator can help you avoid a potential disaster down the road.

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An attorney may think that they do not have any need for an experienced private investigator because of the variety of skills and resources that they employ.  But have you ever found yourself staring at a computer screen and asking:

I know the answer is out there…Where do we go from here?

Although law school and career experience provide an attorney with a number of useful research techniques and litigation skill, they do have limits.

Consulting with a professional private investigator can help attorney’s to leverage your position and find creative and efficient ways to come out ahead of your adversary.

Here are 10 ways that an attorney can use a professional private investigator:

1 Locate People
It may be a witness or an heir. Perhaps it’s a former employee who can shed light on corporate misconduct. Or maybe you need to locate a witness in possession of the proverbial “smoking gun.” Whether you would like to interview, serve, or investigate someone, an investigator can help you to identify and locate the individual.

2 Locate Assets
Investigators are skilled at locating assets such as real estate, valuable property (artwork, antiques, collectibles, etc.), and vehicles (motor vehicles, aircraft, vessels, etc.). An investigator can also help attorneys to identify the location both domestic and offshore bank accounts (though the details of these assets may not necessarily be disclosed by banking institutions without court order or permission from the account holder – see our post 5 Myths: What a Private Investigator Cannot (Legally) Get.

3 Leverage for Negotiations
An investigator can pull together key sources and intelligence to inform your side during litigation, an M &A deal, internal investigation, or any other adversarial situation that can make the difference between a favorable settlement.

4 Enforce Judgments
A judgment is only useful if you are able to enforce it. An investigator can help attorneys to identify current assets and any efforts to hide or misrepresent them through the transfer to family members, friends or other parties.

5 Connect the Dots
Investigators can help you to know who is actually sitting on the other side of the table during litigation or a potential business deal. You can gain immeasurable negotiation power by identifying who is actually behind a faceless corporation or tying together undisclosed connections.

6 Predict Your Opponent’s Next Move
Through an investigation, you can learn your opponent’s history and patterns of behaviors so as to best predict how they will react under pressure. This will help you to be successful in litigation strategizing, during cross examination, or at the deal table.

7 Prep For Cross Examination
During preparation for a deposition or courtroom testimony, an investigator’s report detailing your witnesses’ weaknesses, background, and behavioral tendencies may be one of your most valuable tools. This can also be useful in identifying information against your client, so you can be prepared for what may come up during the course of the litigation.

8 Collect and review electronic evidence
Whether it is an adversarial matter or an internal investigation, investigators may be used to efficiently recover electronic files – including those that a subject believes he or she has successfully deleted. Investigators are frequently used to identify and analyze a subject’s emails, documents, or other files.

9 Trademark and Intellectual Property Monitoring
Investigators can be used to successfully police a company’s products throughout the world. Counterfeiting and improper diversion of products onto the grey market are just two of the most common areas where an investigator can provide intelligence and assistance.

10 Reconstruction
A historical reconstruction may be helpful in a number of different areas. Perhaps you need to review the history of a family to locate heirs. It could be a corporate history or a chain of title issue in a real estate matter. Whatever the issue, an investigator can help to identify and piece together long lost documents, facts and witnesses.

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