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The Attorney/Private Investigator Relationship PICA Annual Conference November 16-17, 2012 Presented by: David D. Queen, Esq. ©2012. David D. Queen. All.

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Presentation on theme: "The Attorney/Private Investigator Relationship PICA Annual Conference November 16-17, 2012 Presented by: David D. Queen, Esq. ©2012. David D. Queen. All."— Presentation transcript:

1 The Attorney/Private Investigator Relationship PICA Annual Conference November 16-17, 2012 Presented by: David D. Queen, Esq. ©2012. David D. Queen. All Rights Reserved

2 To assume makes an ass of you and me Attorneys and PIs often make the mistake of assuming the other one knows the law – the attorney wouldn’t ask me to do something illegal, right? the attorney wouldn’t ask me to do something illegal, right? the PI has been doing this for years, so he/she must know what they’re are allowed to do and not do, right? the PI has been doing this for years, so he/she must know what they’re are allowed to do and not do, right?

3 Vetting the attorney Has he/she ever used a PI before? And get some details Has he/she ever used a PI before? And get some details Who’s the attorney’s client? Who’s the attorney’s client? Exactly what does the attorney want you to do? (This will be your first hint the attorney understands the legal limits) Exactly what does the attorney want you to do? (This will be your first hint the attorney understands the legal limits) Does the attorney have a standard PI agreement? Does the attorney have a standard PI agreement?

4 And vice versa A so-called attorney to the stars, Terry Christensen was convicted of illegal wiretapping actually performed by notorious PI Tony Pelicano. Christensen’s defense that he didn’t realize Pelicano was illegally wiretapping people to collect evidence in a celebrity divorce failed to carry the day.

5 The attorney, PI and client PIs working for attorneys have a shared client. The PI is not the attorney’s client but rather is the attorney’s agent and therefore no privileged relationship exists between the PI and the attorney. The attorney-client relationship exists between the attorney and the client and that attorney client privilege belongs exclusively to the client, meaning he/she can assert it or waive it without permission from either the attorney or the PI. Put another way, the PI must invoke but cannot waive the client’s attorney client privilege

6 Important reminder … Because the PI is not the attorney’s client, the advice of counsel defense is not available to the PI should the PI follow the attorney’s legal advice and end up violating the law. That advice might serve as a good faith defense in a punitive damages case. Therefore, the PI should consider seeking independent legal advice if concerned about the client’s attorney’s legal opinions.

7 The attorney’s duty to the client: “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” Business & Professions Code §6068(e) And the attorney is required to invoke the privilege whenever the opportunity arises unless expressly instructed otherwise by the client. Evidence Code §955

8 Compare that to the PI’s duty of confidentiality “Any licensee … may divulge to any law enforcement officer or district attorney … any information he or she may acquire as to any criminal offense, but he or she shall not divulge to any other person, except as he or she may be required by law to do so, any information acquired by him or her except as directed by the employer or client for whom the information was obtained.” (emphasis added) Business & Professions Code §7539(a)

9 Confidentiality & Client identity A PI’s duty of client confidentiality does not extend to the client’s identity. “A plain reading of the statutory language [§7539] demonstrates the identity of the client does not fall within its scope.” Flynn v. Superior Court of San Diego County (1997) 57 Cal. App. 4 th 990 [NOTE: neither privilege nor confidentiality is retroactive]

10 So how to assure the benefits of the attorney/PI relationship? In a written agreement which: Identifies their common client; Identifies their common client; Describes the services to be performed by the PI; Describes the services to be performed by the PI; The purpose to which the information will be put; The purpose to which the information will be put; Clarifies that the PI is working for the attorney on behalf of the client; Clarifies that the PI is working for the attorney on behalf of the client; Indicates if litigation is anticipated or even possible (litigation privilege); Indicates if litigation is anticipated or even possible (litigation privilege); Specifies that the PI is cloaked with and duty bound to protect the attorney-client relationship; Specifies that the PI is cloaked with and duty bound to protect the attorney-client relationship; Identifies what steps the PI must take to preserve the privilege (e.g. all relevant documents shall be appropriately marked) Identifies what steps the PI must take to preserve the privilege (e.g. all relevant documents shall be appropriately marked)

11 And the agreement should also include: Identify who calls the shots; Identify who calls the shots; Where invoices are to be sent; Where invoices are to be sent; Where (and when) PI’s reports are to be sent; Where (and when) PI’s reports are to be sent; Warranties & disclaimers; Warranties & disclaimers; PI’s right to withhold reports if fees are not paid (Business & Professions Code §624); and PI’s right to withhold reports if fees are not paid (Business & Professions Code §624); and PI’s right to withhold reports if client has lied about intended use of the information or other identified reasons PI’s right to withhold reports if client has lied about intended use of the information or other identified reasons [Note: See the fee agreement checklist handout] [Note: See the fee agreement checklist handout]

12 Fees … California law requires a PI to provide the client with “… a fee schedule or a reasonable explanation of the method by which charges … are to be calculated.” The law is silent, however, on whether it needs to be in writing. 16 Professional & Vocational Regulations §624.

13 Consider who signs! A contract cannot be enforced against a non-signing party. Therefore, consider requiring the client to sign along with attorney to : (a) improve chances of fee collection; (b) get verification of the scope and purpose of your investigation; (c) bind the client to your choice of laws and forum in the event of litigation or arbitration.

14 Warranties All attorney/PI agreements should include mutual warranties. The PI warrants that he/she will not employ illegal means or methods in carrying out his/her services and the attorney/client warrants that the reasons for the engagement are truthful and information obtained by the PI will be used solely for lawful purposes (purpose should be identified if feasible).

15 Disclaimers All engagement letters should contain a disclaimer that the investigator obtains information from witnesses whose veracity cannot be confirmed and from data brokers, private and public agencies, etc. which cannot be independently verified and that any reliance on the data is at the attorney’s or client own risk.

16 Sample disclaimer “The Agency sometimes uses the services of commercial information data services, information from government agencies, information provided by witnesses and other private investigation agencies. This Agency endeavors to verify the accuracy of information where feasible. However, we, cannot guarantee the accuracy of information which is provided to it by third parties. The Client therefore understands and agrees to accept all risk of reliance on such information.” Include something similar in the initial agreement and repeat it in all reports.

17 As Ronaldus Maximus (Ronald Reagan to non- believers) famously said of the Russians: “Д ҽ яpй noh npoверяй” (“Trust, but verify”) (“Trust, but verify”)

18 In other words … When asked to do a surveillance get a copy of vehicle registrations if a tracker might be used; When asked to do a surveillance get a copy of vehicle registrations if a tracker might be used; When searching for a non-custodial kidnapping victim, get a copy of the court custody order; When searching for a non-custodial kidnapping victim, get a copy of the court custody order; When dumspter diving confirm of the ownership of the property where it’s located and public right of access; When dumspter diving confirm of the ownership of the property where it’s located and public right of access; Determine if medical privacy or trade secrets are involved; Determine if medical privacy or trade secrets are involved; When shown a letter addressed to someone other than the client, find out how it came into the attorney’s possession (it’s a felony to intercept someone else’s mail) and so on …. When shown a letter addressed to someone other than the client, find out how it came into the attorney’s possession (it’s a felony to intercept someone else’s mail) and so on ….

19 If the attorney doesn’t know … … tell him or her about the litigation privilege. “A privileged publication … or … broadcast is one made … is one made … in any … judicial proceeding … in any other official proceeding authorized by law or … in the initiation or course of any other proceeding authorized by law …” (Note: “publication” and “broadcast” have broad meanings) Civil Code §47(b)

20 The privilege has been interpreted as having four applications: “ … to any communications (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Silberg v. Anderson (1990) 50 Cal. App. 205, 212

21 Anticipation of litigation … … extends to “preliminary conversations and interviews between a prospective witness and an attorney [or the attorney’s agent] if they are in some way related to or connected with a pending or contemplated action.” (Emphasis added) Financial Corp. of America v. Wilburn (1987) 189 Ca. App. 3d

22 That means … … an investigator is protected from charges of defamation even if the statements are false (provided not maliciously so), if made as part of litigation including investigations in anticipation of litigation. But to assure its availability, your engagement contract should state that you are being hired to assist the attorney in possible future litigation. The privilege can also apply to qualified PI services even where an attorney is not involved.

23 The privilege can apply to: “a constitutionally based privacy cause of action.” Jacob B v. County of Shasta (2007) 40 Cal. 4 th 948 ; “a constitutionally based privacy cause of action.” Jacob B v. County of Shasta (2007) 40 Cal. 4 th 948 ; A wrongful imprisonment & false arrest resulting from information provided to police; or A wrongful imprisonment & false arrest resulting from information provided to police; or Intentional infliction of emotional distress Intentional infliction of emotional distress

24 And one more privilege point! The privilege “…applies to … communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant …” And also “…authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employer.” Civil Code §47(c)

25 If an attorney asks you to interview a witness, you should … Find out if the case is civil or criminal; Find out if the case is civil or criminal; Ask how the attorney got the witness’ name; Ask how the attorney got the witness’ name; Make sure the “witness” is not really a prospective, current or former juror; Make sure the “witness” is not really a prospective, current or former juror; Confirm the witness is not a victim or party to a case; Confirm the witness is not a victim or party to a case; Determine if the witness has counsel; and Determine if the witness has counsel; and Make sure there are no outstanding restraining orders protecting that person (where indicated) Make sure there are no outstanding restraining orders protecting that person (where indicated)

26 Criminal case witnesses “No prosecuting attorney, attorney for the defendant, or investigator for either … shall interview, question, or speak to a victim or witness whose name has been disclosed by the opposing party … without first clearly identifying himself or herself, identifying the name of the agency by who he or she is employed, and identifying whether he or she represents, or has been retained by, the prosecution or the defendant. If the interview takes place in person, the party shall show the victim or witness a business card, official badge, or other form of identification before commencing the interview or questioning.” (Emphasis added) Penal Code §1054.8

27 Represented witnesses The CA Code of Professional Responsibility rule prohibits attorneys from directly contacting witnesses represented by counsel at the time of contact. And what an attorney cannot do himself, he cannot due through a surrogate (i.e. PI).

28 “Deceit” as witness tampering Suggesting as fact something not true by someone who does not believe it to be true; Suggesting as fact something not true by someone who does not believe it to be true; Something as fact when there is reasonable grounds to be believe it’s true; Something as fact when there is reasonable grounds to be believe it’s true; Suppressing information you are duty bound to disclose; Suppressing information you are duty bound to disclose; Suppressing facts which are like to mislead for want of communicating the suppressed fact; or Suppressing facts which are like to mislead for want of communicating the suppressed fact; or Making a promise with no intent of performing Making a promise with no intent of performing Civil Code §1710

29 PI Reports – when and how “Investigative reports shall be submitted to a customer at such times and in such manner has been agreed upon between the licensee and the customer. Upon demand by the customer, the licensee shall not refuse to divulge to the customer the results of an investigation if payment has been tendered for the charges levied.” (Emphasis added) Title 16 Professional & Vocational Regulations §624

30 Report content A “false” report subjects the investigator to discipline. Business & Professions Code §7539(b). In addition, the investigator “… shall exercise due diligence in ascertaining whether or not the facts and information in the report are true and correct.” §7539(c). In other words, simple negligence can get you in trouble.

31 Your report format should: Be uniform in formatting; Be uniform in formatting; Containing the appropriate header or footer (confidential or privilege); Containing the appropriate header or footer (confidential or privilege); A disclaimer; A disclaimer; Cover a single subject (e.g. one witness interview results); Cover a single subject (e.g. one witness interview results); Not include opinions or conclusions about credibility, accuracy of information or legalities) Not include opinions or conclusions about credibility, accuracy of information or legalities)

32 So protect yourself by … A disclaimer in the fee agreement and every report; A disclaimer in the fee agreement and every report; Written confirmation of your rights under §624; Written confirmation of your rights under §624; But §624 requires you to invoice the client first (assuming no retainer); But §624 requires you to invoice the client first (assuming no retainer); Including client’s agreement to withholding information if he/she’s lied to the PI Including client’s agreement to withholding information if he/she’s lied to the PI

33 Presented by: David D. Queen, Esq. 225 S. Lake Ave. Suite 300 Pasadena, CA Tele: Fax: ©2012. All rights reserved


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