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

TheThe Attorney/Private Attorney/Private

Investigator RelationshipInvestigator RelationshipPICA Annual ConferencePICA Annual Conference

November 16-17, 2012November 16-17, 2012

Presented by:Presented by:

David D. Queen, Esq.David D. Queen, Esq.

©2012. David D. Queen. All Rights Reserved©2012. David D. Queen. All Rights Reserved

To assume makes an ass To assume makes an ass of you and meof you and me

Attorneys and PIs often make the mistake of Attorneys and PIs often make the mistake of assuming the other one knows the law – assuming the other one knows the law –

• • the attorney wouldn’t ask me to do the attorney wouldn’t ask me to do something illegal, right?something illegal, right?

• • the PI has been doing this for years, the PI has been doing this for years, so so he/she must know what they’re are he/she must know what they’re are allowed allowed to do and not do, right?to do and not do, right?

Vetting the attorneyVetting the attorney

Has he/she ever used a PI before? And Has he/she ever used a PI before? And get some detailsget some details

Who’s the attorney’s client?Who’s the attorney’s client? Exactly what does the attorney want Exactly what does the attorney want

you to do? (This will be your first hint you to do? (This will be your first hint the attorney understands the legal the attorney understands the legal limits)limits)

Does the attorney have a standard PI Does the attorney have a standard PI agreement?agreement?

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

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

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

The attorney’s duty to the The attorney’s duty to the client:client:

““to maintain inviolate the to maintain inviolate the confidence, and at every peril to confidence, and at every peril to himself or herself to preserve himself or herself to preserve the secrets of his or her client.”the secrets of his or her client.”Business & Professions Code §6068(e)Business & Professions Code §6068(e)

And the attorney is required to And the attorney is required to invoke the privilege whenever invoke the privilege whenever the opportunity arises unless the opportunity arises unless expressly instructed otherwise expressly instructed otherwise by the client.by the client.Evidence Code §955Evidence Code §955

Compare that to the PI’s duty of Compare that to the PI’s duty of confidentiality confidentiality

““Any licensee … Any licensee … maymay divulge to any divulge to any law enforcement officer or district law enforcement officer or district attorney … any information he or she attorney … any information he or she may acquire as to may acquire as to any criminal any criminal offense, but he or she offense, but he or she shall not shall not divulge divulge to any other person, except as he or to any other person, except as he or she may be required by law to do so, she may be required by law to do so, any information acquired by him or any information acquired by him or her except as directed by the her except as directed by the employer or client for whom the employer or client for whom the information was obtained.” information was obtained.” (emphasis (emphasis added)added)

Business & Professions Code §7539(a)Business & Professions Code §7539(a)

Confidentiality & Client Confidentiality & Client identityidentity

A PI’s duty of client confidentiality A PI’s duty of client confidentiality does not extend to the client’s does not extend to the client’s identityidentity. .

““A plain reading of the statutory A plain reading of the statutory language [§7539] demonstrates the language [§7539] demonstrates the identity of the client does not fall identity of the client does not fall within its scope.”within its scope.”Flynn v. Superior Court of San Diego CountyFlynn v. Superior Court of San Diego County (1997) 57 (1997) 57 Cal. App. 4Cal. App. 4thth 990 990

[NOTE: neither privilege nor confidentiality is retroactive][NOTE: neither privilege nor confidentiality is retroactive]

So how to assure the benefits of the So how to assure the benefits of the attorney/PI relationship?attorney/PI relationship?

In a In a writtenwritten agreement which: 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 Clarifies that the PI is working for the attorney on

behalf of the client;behalf of the client; Indicates if litigation is anticipated or even possible Indicates if litigation is anticipated or even possible

(litigation privilege); (litigation privilege); Specifies that the PI is cloaked with and duty bound Specifies that the PI is cloaked with and duty bound

to protect the attorney-client relationship; to protect the attorney-client relationship; Identifies what steps the PI must take to preserve Identifies what steps the PI must take to preserve

the privilege (e.g. all relevant documents shall be the privilege (e.g. all relevant documents shall be appropriately marked)appropriately marked)

And the agreement should also And the agreement should also include: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 PI’s right to withhold reports if fees are not

paid (Business & Professions Code §624); andpaid (Business & Professions Code §624); and PI’s right to withhold reports if client has lied PI’s right to withhold reports if client has lied

about intended use of the information or about intended use of the information or other identified reasonsother identified reasons

[Note: See the fee agreement checklist [Note: See the fee agreement checklist handout]handout]

Fees …Fees …

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

16 Professional & Vocational Regulations §624.16 Professional & Vocational Regulations §624.

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

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

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

Sample disclaimerSample disclaimer

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

Include something similar in the initial agreement and repeat it in Include something similar in the initial agreement and repeat it in all reports.all reports.

As Ronaldus Maximus (Ronald Reagan to As Ronaldus Maximus (Ronald Reagan to non-believers) famously said of the non-believers) famously said of the

Russians:Russians:

““ДДᴏᴃᴏᴃҽяҽяppй й noh nponoh npoверяйверяй””

(“Trust, but verify”)(“Trust, but verify”)

In other words …In other words … When asked to do a surveillance get a copy of When asked to do a surveillance get a copy of

vehicle registrations if a tracker might be used;vehicle registrations if a tracker might be used; When searching for a non-custodial kidnapping When searching for a non-custodial kidnapping

victim, get a copy of the court custody order;victim, get a copy of the court custody order; When dumspter diving confirm of the ownership of When dumspter diving confirm of the ownership of

the property where it’s located and public right of the property where it’s located and public right of access; access;

Determine if medical privacy or trade secrets are Determine if medical privacy or trade secrets are involved; involved;

When shown a letter addressed to someone other When shown a letter addressed to someone other than the client, find out how it came into the than the client, find out how it came into the attorney’s possession (it’s a felony to intercept attorney’s possession (it’s a felony to intercept someone else’s mail) and so on ….someone else’s mail) and so on ….

If the attorney doesn’t know If the attorney doesn’t know ……

… … tell him or her about the litigation tell him or her about the litigation privilege.privilege.

““A privileged publication … or … A privileged publication … or … broadcast is one made … is one made broadcast is one made … is one made … in any … judicial proceeding … in … in any … judicial proceeding … in any other official proceeding any other official proceeding authorized by law or … in the authorized by law or … in the initiation or course of any other initiation or course of any other proceeding authorized by law …” proceeding authorized by law …” (Note: “publication” and “broadcast” (Note: “publication” and “broadcast” have broad meanings)have broad meanings)Civil Code §47(b)Civil Code §47(b)

The privilege has been interpreted as The privilege has been interpreted as having four applications: having four applications:

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

Anticipation of litigation …Anticipation of litigation …… … extends to “preliminary extends to “preliminary conversations and interviews conversations and interviews between a prospective witness between a prospective witness and an attorney [or the attorney’s and an attorney [or the attorney’s agent] if they are in some way agent] if they are in some way related to or connected with a related to or connected with a pending or pending or contemplatedcontemplated action.” action.” (Emphasis added)(Emphasis added)

Financial Corp. of America v. WilburnFinancial Corp. of America v. Wilburn (1987) 189 Ca. App. (1987) 189 Ca. App. 3d 764-7773d 764-777

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

The privilege can apply to:The privilege can apply to:

““a constitutionally based privacy a constitutionally based privacy cause of action.” cause of action.” Jacob B v. County of Shasta Jacob B v. County of Shasta

(2007) 40 Cal. 4(2007) 40 Cal. 4thth 948 948;; A wrongful imprisonment & false A wrongful imprisonment & false

arrest resulting from information arrest resulting from information provided to police; orprovided to police; or

Intentional infliction of emotional Intentional infliction of emotional distressdistress

And one more privilege point!And one more privilege point!

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

If an attorney asks you to interview a If an attorney asks you to interview a witness, witness,

you should …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 Make sure the “witness” is not really a

prospective, current or former juror; prospective, current or former juror; Confirm the witness is not a victim or party to Confirm the witness is not a victim or party to

a case; a case; Determine if the witness has counsel; andDetermine if the witness has counsel; and Make sure there are no outstanding Make sure there are no outstanding

restraining orders protecting that person restraining orders protecting that person (where indicated)(where indicated)

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

Represented witnessesRepresented witnessesThe CA Code of Professional The CA Code of Professional Responsibility rule 2-100 prohibits Responsibility rule 2-100 prohibits attorneys from directly contacting attorneys from directly contacting witnesses represented by counsel witnesses represented by counsel at the time of contact. And what at the time of contact. And what an attorney cannot do himself, he an attorney cannot do himself, he cannot due through a surrogate cannot due through a surrogate (i.e. PI). (i.e. PI).

““Deceit” as witness tamperingDeceit” as witness tampering Suggesting as fact something not true by Suggesting as fact something not true by

someone who does not believe it to be true;someone who does not believe it to be true; Something as fact when there is reasonable Something as fact when there is reasonable

grounds to be believe it’s true;grounds to be believe it’s true; Suppressing information you are duty bound Suppressing information you are duty bound

to disclose;to disclose; Suppressing facts which are like to mislead Suppressing facts which are like to mislead

for want of communicating the suppressed for want of communicating the suppressed fact; fact; oror

Making a promise with no intent of performingMaking a promise with no intent of performingCivil Code §1710Civil Code §1710

PI Reports – when and howPI Reports – when and how

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

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

Your report format should:Your report format should: Be uniform in formatting;Be uniform in formatting; Containing the appropriate header or Containing the appropriate header or

footer (confidential or privilege);footer (confidential or privilege); A disclaimer;A disclaimer; Cover a single subject (e.g. Cover a single subject (e.g. oneone witness witness

interview results);interview results); Not include opinions or conclusions about Not include opinions or conclusions about

credibility, accuracy of information or credibility, accuracy of information or legalities)legalities)

So protect yourself by …So protect yourself by … A disclaimer in the fee agreement and A disclaimer in the fee agreement and

everyevery report; report; Written confirmation of your rights under Written confirmation of your rights under

§624;§624; But §624 requires you to invoice the client But §624 requires you to invoice the client

first (assuming no retainer);first (assuming no retainer); Including client’s agreement to Including client’s agreement to

withholding information if he/she’s lied to withholding information if he/she’s lied to the PIthe PI

Presented by:Presented by:

David D. Queen, Esq.David D. Queen, Esq.225 S. Lake Ave. Suite 300225 S. Lake Ave. Suite 300

Pasadena, CA 91101Pasadena, CA 91101Tele: 626.689.2213Tele: 626.689.2213Fax: 626.628.3966Fax: 626.628.3966

email: [email protected]: [email protected]

©2012. All rights reserved ©2012. All rights reserved