Guns, Gams & Gumshoes

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Got Counsel? When and Why a PI Must Know

Posted by Writing PIs on April 19, 2015

eye and magnifying glass

Here is the #1 thing a private investigator, when working on behalf of an attorney, does before interviewing a subject: The PI finds out if the subject is represented by counsel. Because if the subject has a lawyer, the PI cannot make any contact with the subject. If the PI makes contact anyway, this can cause serious problems for the PI and his/her attorney-client.

What’s the Big Deal?

It’s a big deal because it’s illegal

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 because of 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, the attorney, 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).

Tip for Writers: Your PI Should Know This Rule

We like reading private eye novels as much as we enjoy the real world of private investigations. But one thing we find way too often in stories is a private detective, who’s working for an attorney, blithely approaching a subject and grilling him/her…and the PI has no idea if the subject is represented by counsel.

In fact, one of the Writing PIs just read a scene in a private eye novel where the PI, working on behalf of an attorney in a divorce case, approached the subject on the other side of the case who also happened to be a magistrate, and who also happened to be represented by his own divorce lawyer…and neither the PI nor the magistrate seemed to care that the PI was violating an ethical rule! Even stranger, the magistrate answered every single one of the PI’s questions. Even if this magistrate had not been represented by counsel, there is no way the magistrate would answer a bunch of questions posed by a PI on the opposite side in a case in which the magistrate is a litigant. The writer could have avoided this implausible situation by conducting some research first.

How Does a PI Find Out if a Subject Has Counsel?

Often the PI’s attorney-client already knows if a subject has retained counsel, so either the lawyer has already told the PI or the investigator can simply ask the attorney-client.

Or, if a PI were to be in a situation where he/she has no idea if the subject has legal representation, the PI can simply ask the person. Better to ask first, than to get into hot water later.  On the other hand, maybe a writer wants the private eye to get into even more hot water to crank up the story tension — well, violating this ethical rule is certainly one way to accomplish that.

Have a great day, Writing PIs

All rights reserved by Colleen Collins and Shaun Kaufman. Any use of the content (including images owned by Colleen Collins and/or Shaun Kaufman) requires specific, written authority.

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