Guns, Gams & Gumshoes

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Answering Writers’ Questions: Law Firms Using PIs and Needing to Know if a Subject Has a Lawyer

Posted by Writing PIs on August 23, 2009

Sam Spade

Today we’re posting some writers’ questions (and our responses) about law firms using PIs, the importance of PIs knowing if subjects are represented by counsel, and could a character retroactively claim attorney-client privilege.

Writer’s Question: Do all law firms have a need for PI’s? I realize the obvious ones do, but it sounds to me like they all do. Could you give some examples of not so common law practices that may need a PI’s services?

Guns, Gams, and Gumshoes Answer: There is a rule of law that says an attorney cannot testify in any matter about his/her own investigation and continue to act as an attorney in that case. So, in most cases, any law firm that presents facts in a disputed case will want to hire an investigator (the only other way to get facts on the stand is through testimony from those who actually saw/heard the events in dispute). It’s not that an attorney can’t do the latter (it’s done all the time), it’s that a PI can also present facts such as measurements, photographs, witness evaluation, background facts, data analysis, etc.

Having a PI present testimony also circumvents surprises such as a witness changing his/her story after they get on the stand. As far as not-so-common law practices that might need a PI’s services, here’s a few: water law, elder law, real estate and mining law, intellectual property and trademark infringement law, and cable TV piracy, to name a few.

Writer’s Question: Is it illegal for a PI to have contact with a subject who has an attorney? Why? Is it harrassment? Also, if they do, is it the PI’s attorney who gets ‘punished’ by losing his license rather than the PI? If the subject doesn’t have an attorney when he comes into contact with the PI, couldn’t he just go get an attorney and indicate he had been harrassed by the PI?

Guns, Gams, and Gumshoes Answer: The legal system has gone to great lengths to protect and enhance the institution and confidentiality of the lawyer-client relationship.  The reason that it is illegal for a PI who is working for Attorney A (and A’s client) to have contact with Attorney B’s client is this institution and confidentiality.

Why might an attorney be accountable for his/her PI contacting the client of an opposing attorney?  The legal idea behind this is simply that the boss is ultimately responsible for the employee’s actions.  In states where PIs are licensed, it may indeed be the case that both the attorney and the PI would be punished for intruding on another attorney-client relationship (one needs to check if this is the case with that state’s PI licensing statutes or that state’s attorney’s code of professional responsibility).

As to your last question–could a person hire an attorney after being contacted by a PI, and then claim harrassment: A person cannot retroactively create an attorney-client relationship, but anyone can claim harassment by another third party.  For the sake of a story, could a character talk to a PI, then afterward realize they said too much and not want what they said to that PI be admissible as evidence?  Again, this character couldn’t retroactively claim attorney-client privilege, but that character might accuse the PI of harrassment, which would cast doubt on the reliability of that prior interview as evidence.  In other words, a lawyer wouldn’t want to “dirty up” their case with evidence of an interview that has serious concerns about its reliability.


3 Responses to “Answering Writers’ Questions: Law Firms Using PIs and Needing to Know if a Subject Has a Lawyer”

  1. Hope Clark said

    My husband is a PI for mainly one defense attorney, occasionally another. I know he’s biased, but he swears that an attorney cannot investigate like a PI/ previous law enforcement officer can. Their minds think too differently. As a matter of fact, this main attorney now petitions the judge in her cases to allow my husband to sit at her table during trials, to point out issues she’s missing.

  2. Just passed a Kreative Blogger award along to you folks. You can find info here:

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