1. Investigator and Attorney Relationship Ethics Professional Private Investigators Association of Colorado May 05, 2010
Dean A. Beers, CLI
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970) / (970) fax

2. The status of PIs in Colorado
It has been decided by a District Court Judge in Colorado that Private Investigators have NO ethics requirements because we are not licensed.
Concerning private investigators and ethics in Colorado, “… there is no ethical code that can be established.”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

3. The Attorney-Investigator Relationship
There are many issues of ethics for investigators – from those of our own association, others we may belong to, and specific to the investigator-attorney relationship.
Much of our investigative work involves an attorney relationship, or similar, in civil and criminal cases.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

4. A sample scenario (civil)
Litigation is ongoing – both parties are represented by attorneys.
A plaintiff has been involved in a motor vehicle collision. The defense counsel would like to know if he is working the farm he owns or if he has hired help.
On three separate occasions three separate investigators, using a ruse and false identities, visit the plaintiff and record their conversations. The investigators may have been retained by the defense attorney or the defendant directly.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

5. A sample scenario (civil)
To speak with the plaintiff they entered the property through a gate that was chained, but not locked. A sign on the property read “Fresh Produce for Sale – call ”.
In one of the conversations the investigator related a story of having been hurt bad in a car accident and really frustrated with the whole legal process and finally just settled to get it over with.
It was then that the plaintiff expressed his frustrations and that he would not settle because his attorney told him that his injuries were serious and worth a large settlement; he just had to wait it out.
One investigator kept returning in an attempt to develop a friendship.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

6. The Attorney-Investigator Relationship
Working for the attorney creates a relationship in which the investigator is the agent of the attorney (CRPC Rule 5.3 referring to Rule 4.2).
This relationship requires that the investigator follow the same rules (ethics, procedures and evidence) as the attorney. Working directly for a private party is not applicable – but consider how your work product will be used.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

7. CRPC Rule 5.2 Communications with Persons Represented by Counsel:
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” As agents of the attorney, this is applicable to the investigator.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

8. Attorney-Investigator Ethics Highlights
Although entrapment can only be the action of law enforcement and is criminal.
It is generally unethical to give a leading or misleading statement as it may produce a response that would not otherwise be the normal words of the subject.
Moreover, it is also unethical to perform any duty or action that would violate a person’s Constitutional rights.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

9. Attorney-Investigator Ethics Highlights
Pretexts, surreptitious identities and recordings all have their purposes, particularly in obtaining information that is otherwise unobtainable.
Although they are a form of obtaining information, it is incumbent upon the investigator to use them with caution and at the direction of the representing attorney.
If the welfare of the children are of concern, the safety of the children is an exigent and overriding consideration.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

10. Attorney-Investigator Ethics Highlights
An invasion of privacy occurs when a person encroaches upon the place of solitude or seclusion, and such encroachment is highly offensive to the reasonable person.
This includes using deceit or trickery. This may or may not be physical trespassing.
This may occur by phone, , fax and – any form of communication or interaction.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

11. Attorney-Investigator Ethics Highlights
Colorado is a one-party consent state for surreptitious recordings of communication.
Further, the rules of ethics do not bar an investigator, retained directly by a private party, from using deception and trickery in such communication and surreptitiously recording the same.
However, a ruse and the recording while employing deception and trickery to elicit statements that the subject may not otherwise make in a private conversation is a gray area.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

12. Colorado Bar Association, Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03,
Because surreptitious recording of conversations or statements by an attorney may involve an element of trickery or deceit, it is generally improper for an attorney to engage in surreptitious recording even if the recording is legal under state law. For the same reason, a lawyer generally may not direct or even authorize an agent to surreptitiously record conversations, and may not use the ‘fruit’ of such improper recordings.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

13. Colorado Bar Association, Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03,
“Because surreptitious recording of conversations or statements by an attorney may involve an element of trickery or deceit … a lawyer generally may not direct or even authorize an agent to surreptitiously record conversations, and may not use the ‘fruit’ of such improper recordings.”
“However, where a client lawfully and independently records conversations, the lawyer is not required to advise the client to cease its recording, nor to decline to use the lawfully- and independently-obtained recording.”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

14. Colorado Bar Association, Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03,
“… assuming that relevant law does not prohibit the recording, there are two categories of circumstances in which attorneys generally should be ethically permitted to engage in surreptitious recording or to direct surreptitious recording by another: (a) in connection with actual or potential criminal matters, for the purpose of gathering admissible evidence; and (b) in matters … exclusively to the lawyer’s private life.”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

15. Colorado Bar Association, Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03,
“One reason for an attorney [and agents] intentionally not disclosing that a particular conversation or statement is being recorded may be a belief that the person whose conversation is being recorded would choose his words more carefully, or speak less freely, or not at all, if such knowledge were imparted to him.”
“There is inherent in the undisclosed use of a recording device under these circumstances an element of deception, artifice or trickery which falls below the standard of candor and fairness which all attorneys [and agents] are bound to uphold.”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

16. Colorado Bar Association, Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03,
“Colorado Rule 8.4(c), like prior DR-1-102, prohibits ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’ As a result, for the same reason that CBA 22 and the Colorado Supreme Court concluded that it is improper for an attorney to surreptitiously record conversations or statements.”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

17. Colorado Bar Association, Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03,
“For the same reasons, it is also generally improper for an attorney to direct or even authorize another, such as an investigator or legal assistant, to record conversations surreptitiously.
Colo. RPC 8.4(a) (it is misconduct for lawyer to violate rules through the act of another); e.g., CBA Ethics Comm. Abstract 98/99-05 (where private investigator retained by an attorney surreptitiously recorded a witness interview without the lawyer’s prior knowledge or approval, the attorney should not listen to or use the tape without the witness’ permission).”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

18. Pretexting
“Pretexting is simply the means that an investigator may use by representing himself in such a way that the subject makes admissions or statements and that the subject would not otherwise have uttered, or providing evidence that the investigator would not otherwise have obtained.”
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

19. Is it a Civil or Criminal Investigation
The Rules of Professional Conduct provides certain exceptions for investigative procedures for criminal cases.
Generally, there are no exceptions in civil cases (see below).
It is often that a criminal case will also result in a civil action for damages.
An example would be bootlegging, or the illegal copying and distribution of software or movies, and similar trademark and copyright infringement.
Other examples include workplace theft, sexual harassment and theft of intellectual property.
Pretexting is essentially the use of an undercover investigator.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

20. Is it a Civil or Criminal Investigation
Using pretexts to obtain information and intelligence of a person’s wrongdoing does not violate the Rules of Professional Conduct.
Using a pretext for the purposes of obtaining basic information about alleged wrongful, or criminal, acts is not a violation of the rules.
It has been viewed that similar pretexting may be used in civil matters – such as workplace hiring or housing discrimination.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

21. Is it a Civil or Criminal Investigation
‘Secret Shoppers’ has also been a long held acceptable practice and does not constitute any material representation on the part of the investigator or the facts.
In consideration of all pretexts is any undue influence the actions – from using false identities to false information – may materially mislead the subject and cause the utterance of statements or other actions that would not otherwise occur.
This is simply the investigator going beyond the action of posing as a consumer, co-worker, employee or other position.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

22. What does this mean? In the attorney-investigator relationship:
The investigator cannot record a conversation without disclosure; except in criminal cases to obtain otherwise unobtainable evidence.
The investigator cannot use deceit or trickery to obtain a statement that the subject would not have otherwise provided. In criminal cases there are exceptions.
The investigator cannot break the law.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

23. Back to our scenario - good and bad?
The investigators engaged the plaintiff in surreptitiously recorded conversations.
Statements included what was otherwise attorney-client privilege that would likely have not been uttered were it not for the ruse of the investigator’s own experience.
One investigator continued contact (personal, phone and ) as a ‘friend’ after his services were completed.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

24. Back to our scenario - good and bad?
What would be different between having been retained by the attorney vs. the defendant directly?
What would be different if this were a criminal case?
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

25. In Conclusion
Know your client, your case and the Rules of Professional Conduct, as well as association ethics rules.
If you are not sure – ask before you act.
Not all attorneys know the law.
We are professionals – not slimy peeping toms.
Forensic Investigators of Colorado, LLC
Personal Injury, Negligence & Death / Criminal Defense
(970)

26. Thank You!