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The Evolving Rules Governing the Use of Investigators
Most attorneys involved in the investigation or defense of complex business crimes will turn to private investigators to assist them in developing the facts. Given the breadth and nature of many modern criminal investigations, the use of private investigators is almost becoming a necessity. Yet many basic rules governing their use are unclear or in flux, especially when it comes to monitoring or gathering electronic information. The consequences of an ill-supervised or, even worse, unlawful investigation can range from the exclusion of evidence to criminal prosecution, always with the risk of severe reputational damage to the client on whose behalf the work is performed. In this article, we identify some key issues to guide attorneys in this important area.
General Ethical Limitations
Any work performed on behalf of an attorney, including work performed by investigators, will be subject to the rules of ethics. Because the use of investigators often involves surreptitious activity or deception, attorneys supervising investigators must be careful not to run afoul of the ethical rules against deceptive conduct. In New York, for example, DR 1-102(a)(4) provides that 'a lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,' and under DR 7-102(a)(5), a lawyer may not 'knowingly make a false statement of law or fact.' Moreover, the investigator may interact with individuals or entities represented by counsel with respect to the subject matter of the investigation, and DR 7-104(a)(1) generally prohibits not only lawyers but also their representatives from communicating with the clients of other lawyers. The New York rules have equivalents in most other jurisdictions.
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