Professional Investigations: Ethical Considerations for the Professional Investigator



  Dedicated to

  our friends and colleagues,

  throughout this country and world,

  of this great profession …

  “Together We’re Better!”

  Professional Investigations:

  Ethical Considerations for the Professional Investigator

  February 2012 for ebook distribution

  Copyrighted 2002-2012

  Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI

  Associates in Forensic Investigations, LLC

  All Rights Reserved. No parts of this book may be used or reproduced, in any manner whatsoever, without written permission; except in the case of brief quotations embodied in critical articles or reviews.

  For information, email [email protected]

  United States of America – 2012

  Professional Investigations:

  Ethical Considerations for the Professional Investigator

  Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI

  ASSOCIATES IN FORENSIC INVESTIGATIONS, LLC

  Professional Investigators since 1987

  Authors’ Disclaimer

  This article is for professional guidance and informational purposes only. Laws regarding licensing and application of the principles presented within are the responsibility of the reader, as is any reliance of the information presented or obtained from any investigative resource.

  Every effort has been made to ensure the accuracy of the information presented. Because laws vary from jurisdiction to jurisdiction, and do change with legislative enactments, it is the responsibility of the reader to verify permissible purposes.

  The author makes no warranties, guarantees or promises that the contents of this book can be universally used within every jurisdiction or for every case, and likewise makes no warranties, guarantees or promises of an individual’s success based upon the information presented. Purchase, acceptance and use of this book constitute the acceptance of the responsibility inherent with the ethics of our profession and is a single-user license of the book. This book and its contents may not be copied or distributed without the written permission of the author.

  About the authors

  Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI

  Dean began his investigative career in 1987. He is a Certified Legal Investigator (CLI) and Certified Criminal Defense Investigator (CCDI), and expert in criminal defense homicide and civil equivocal death investigations. He is certified in Medicolegal Death Investigations and served as a forensic autopsy assistant. He has lectured extensively and authored multiple articles, peer-reviewed white papers, and provided expert testimony on Protocols of Private Investigation, and Forensic Investigation of Injury Pattern Analysis. He authored Professional Locate Investigations and recently completed Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases, released by CRC Press in February 2011.  With Karen he co-developed 'Death Investigation for Private Investigators' online continuing education for 14 states.

  Karen began learning and working the investigative profession in 1996. She earned her Bachelor's in Social Work (BSW) from Colorado State University (Magna Cum Laude).  She is also a Certified Criminal Defense Investigator (CCDI); they are one of three husband & wife team CCDIs.  Karen is also certified in Medicolegal Death Investigations. Her background, education and experience with victim advocacy and counseling are valuable assets in working with families and victims of traumatic events. Her death investigation training and experience, together with her social work and general investigative skills and experience, are an asset to the medicolegal and criminal defense investigative processes.

  INTRODUCTION

  This article is adapted from various articles that have been introduced as a single topic and read in newsletters and magazines of multiple associations throughout the United States and internationally. The value and importance of our professional ethics cannot be overstated. Ethics are often seen as morals, they are not, though one will impact the other. Morals behavioral guides that are personal and individualistic. Ethics are rules of behavior for an individual through a group – such as an association or profession. Because of the importance of ethics, this article will always be free to our colleagues and continue to be included, in relevant form, in all of our books or comprehensive articles.

  It is often said that a professional is only different from their adversary because of the morals and ethics, and using their honed skills for the betterment of others and not themselves. The same is true of professional investigators.

  Our goal for this article, and all that we do with our articles, books, courses and social networking, is to do what was not done for me when I started – sharing useful and valuable information that will benefit you as a professional.

  Best wishes,

  Dean A. Beers, CLI, CCDI / Expert Consultant and Karen S. Beers, BSW, CCDI

  Board Certified Legal Investigator

  Board Certified Criminal Defense Investigators

  Certified in Medicolegal Death Investigations

  PROFESSIONAL ASSOCIATIONS

  In addition to being professional investigators, we are also ambassadors of our agencies and profession. By joining your state association, as well as any other state, national and international associations pertinent to investigations and your specialties, you become an ambassador of those associations. In addition, at both the state and national level our profession faces chronic attacks on our ability to perform the tasks required of us by our clients. I urge you to join a national association that represents our profession in front of Congress and our governments. Be involved. The following are associations that we belong, beyond the state associations. This is not a comprehensive list, but is based upon our own needs and experience. Of course we hope that you join us. We are happy to answer any questions about any of these associations and our involvement. Check with your colleagues about how you can be part of the solution. Being part, and active, in these associations will better yourselves, as well as our profession.

  “Together We’re Better!”

  World Association of Detectives

  www.WAD.net

  The World Association of Detectives was founded in 1925. In 1950, the World Secret Service Association, Inc. was formed as a joint venture by the combined membership of the International Secret Service Association (founded in 1921) and the World Association of Detectives. At our annual conference in August 1966 in San Antonio, Texas, USA, our present name was unanimously approved by amendment, reverting to the name of “World Association of Detectives.”

  National Council of Investigation and Security Services

  www.NCISS.org

  The National Council of Investigation and Security Services, Inc., is a cooperative effort of those companies and associations responsible for providing private security and investigation services to the legal profession, business community, government and the public. Each day we find an increasing number of problems confronting the orderly growth of our profession. These problems include, among others: overly restrictive legislation regarding training and standards, proliferation of legislation requiring local licensing, public misunderstanding and misinformation on the role and contribution of private investigators and security services, and an uninformed media. It is the role of NCISS to meet and solve these problems while seeking to uncover and recommend action on any hidden potential problems which may have an effect on our
profession.

  National Association of Legal Investigators

  www.NALI.com

  NALI was formed in 1967 for legal investigators actively engaged in negligence investigations for the plaintiff and/or criminal defense.  These investigators may be employed by law firms, public defenders or private investigative agencies. NALI developed the coveted Certified Legal Investigator program, of which there are less than 100 CLIs worldwide.

  National Defender Investigators Association

  www.NDIA.net

  The National Defender Investigator Association (NDIA) is the only national organization to represent a constituency dedicated solely to the investigative arm of indigent defense.

  Criminal Defense Investigation Training Council

  www.DefenseInvestigator.com

  The Criminal Defense Investigation Training Council was established to encourage a dialogue among professionals and scholars involved in various aspects of criminal defense investigation. The Council exists as an open forum in which investigative philosophy, methodology, education, and principles of ethical inquiry can be considered via academic training programs, discussions, debate, and writings. The Council is actively pursuing the goals of professional competence and academic excellence via the Board Certified Criminal Defense Investigator program and the Training Accreditation Program. The Council encourages professionals actively engaged in the discipline of Criminal Defense Investigation to join the Council and pursue the designation of Board Certified Criminal Defense Investigator.

  Other Associations

  In addition to these associations, other memberships specific to our specialties include: National Association of Medical Examiners (www.theNAME.org), International Association for Identification (www.theIAI.org) and Mensa USA (www.Mensa.us). We also belong to the Professional Private Investigators Association of Colorado (www.PPIAC.org), Florida Association of Licensed Investigators (www.FALI.org), Texas Association of Licensed Investigators (www.TALI.org) and the National Association of Professional Women (www.NAPW.com).

  Ethical Considerations

  for the Professional Investigator

  None of the information presented below or in this book is to be construed as legal advice. It is every professional investigator’s responsibility to research, know and abide by all statutes, codes, laws, policies, rules and professional ethics. Please consult an experienced attorney for any legal advice.

  Nothing speaks louder, or can have more consequences, than actions. Analyze your client, the case, subject and your entire investigation from all of these perspectives, and the courts. It will may you both successful and responsible.

  The actions you take in your actions must be legal. Your actions must also be justified, including necessity and costs, and without bias to any person.

  We have a responsibility to our businesses, professions, clients, and even the subjects, to use self-regulating rules that go beyond the requirements of the law. Ethics are so important to our profession that this revision has this complete chapter, not just the above important considerations.

  Keep one unwritten rule in mind – be sure of your client and the purpose – do not jeopardize any parties to the investigation, even the subject, to harm; or exceed your legal authority and permitted purposes. These last two items alone are the primary causes of the restrictions the investigative profession continues to face daily.

  As professional investigators, ethics are our moral compass. Ethics may originate in licensing statute, association code of ethics and professional ethics by way of our client, such as acting as an attorney’s agent and falling under the Rules of Professional Conduct [RPC] – which may be entitled differently by state. Most state bar associations have adopted and modeled their PRC after those of the American Bar Association [ABA]. Legal investigators universally subscribe to those outlined in ‘Code of Professional Conduct’ by Kitty Hailey, CLI. Even in states without licensing there are ethics – either by membership in an association, which is selective, or as acting as an agent for an attorney. That is, unless you follow the reasoning of a District Court Judge in Colorado. In a recent ruling, he determined that private investigators have no ethics requirements because there is no licensing. Specifically, concerning private investigators and ethics in Colorado, “… there is no ethical code that can be established …” or enforced by the court. This will be cured with a new voluntary licensing law was signed June 2011 and is effective July 2012.

  There are many issues of ethics for investigators – from those promulgated by each of our own state associations, other professional associations we may belong to, and those specific to the investigator-attorney relationship. Much of our investigative work involves an attorney relationship, or similar, in civil and criminal cases. Common ethical issues that arise include: using a ruse and false identities, personal or other inappropriate contact with a represented opposing party, surreptitiously recording conversations, entering onto private property or other prohibited area, and even extending any contact (lawful or not) with a party into a relationship (i.e. business, social or personal) that is beyond the scope of the assignment. Consideration in many states, and with the RPC, is dependent on if the investigator was retained by an attorney, if the parties are represented by an attorney, or if the party retains the investigator directly.

  Working for the attorney creates a relationship in which the investigator is the agent of the attorney (American Bar Association RPC Rule 5.3 referring to Rule 4.2). This relationship requires that the investigator follow the same rules (ethics, procedures and evidence) as the attorney. Working directly for a private party is generally not applicable – but consider how your work product will be used.

  In the course of investigations, as an example a witness interview, it is generally unethical to give a leading or misleading statement as it may produce a response that would not otherwise be the normal words of the subject. Although ruses and pretexts are a form of obtaining information, it is incumbent upon the investigator to use them with caution and at the direction of the representing attorney. If the welfare or safety of children is of concern, the safety of the children is an exigent and overriding consideration. An invasion of privacy occurs when a person encroaches upon the place of solitude or seclusion, and such encroachment is highly offensive to the reasonable person. This includes using deceit or trickery. This may or may not be physical trespassing. This may occur by phone, email, fax and email – any form of communication or interaction.

  Colorado is one of many one-party consent states for surreptitious recordings of communication. Only 12 states are two-party consent states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington – (1)). The rules of ethics do not bar an investigator, retained directly by a private party and not falling under the direction of an attorney, from using deception and trickery in such communication and surreptitiously recording the same. That is not to endorse the activity, only that it is not otherwise verboten. However, a ruse and the recording while employing deception and trickery to elicit statements that the subject may not otherwise make in a private conversation remains a gray area.

  Per the ABA, and many state bar associations RPC, an attorney and therefore any agent, shall not … communicate or cause another to communicate on the subject of the representation with a party he know[s] to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” Attorneys and their agents, including private investigators, cannot contact represented parties. It should be noted that an employee of a business entity is not a party to the action and can be contacted.

  Also pursuant to many state bar associations RPC, attorneys may not electronically record a conversation with another party without first informing that party that the conversation is being recorded. It was concluded that, although the recording of a telephone c
onversation by a party thereto did not per se violate the law, attorneys were held to a higher standard. It has been reasoned that the secret recording of conversations offended most persons' concept of honor and fair play. Therefore, attorneys should not electronically record a conversation with another party, without first informing that party that the conversation was being recorded. An attorney may advise the client that state law (if permitted) and federal law permit the client to electronically record conversations without first informing the other parties involved, where the equities of the situation merit such advice. It is also important to note that federal law has permitted the individual states to enact privacy legislation that may be more restrictive; hence states that do require the consent of both parties. An attorney, however, may not circumvent his or her ethical obligations by requesting that clients secretly record conversations to which the attorney is a party. Under these circumstances, the attorney would be ethically required to advise the other parties of the electronic recording, in advance. An attorney may not solicit the aid of his or her clients to undertake an action that the attorney is ethically prohibited from undertaking.

  Because surreptitious recording of conversations or statements by an attorney may involve an element of trickery or deceit, it is generally improper for an attorney to engage in surreptitious recording even if the recording is legal under state law. For the same reason, a lawyer generally may not direct or even authorize an agent to surreptitiously record conversations, and may not use the ‘fruit’ of such improper recordings. In Colorado there are two exceptions: 1. Criminal defense cases in which exculpatory evidence is expected to be obtained and which may not otherwise be obtained; and 2. The attorney’s private conversations.

  Pretexting is simply the means that an investigator may use by representing himself in such a way that the subject makes admissions or statements and that the subject would not otherwise have uttered, or providing evidence that the investigator would not otherwise have obtained. This includes the use of an investigator undercover, such as an agent for a business or company. Acting as an agent, including undercover, for the government presents a different set of rules and considerations – including Constitutional rights. The ABA RPC provides certain exceptions for investigative procedures for criminal cases. Generally, there are no exceptions in civil cases (see below). It is often that a criminal case will also result in a civil action for damages. An example would be bootlegging, or the illegal copying and distribution of software or movies, and similar trademark and copyright infringement. Other examples include workplace theft, sexual harassment and theft of intellectual property. All of these may use pretexts to obtain information and intelligence of a person’s wrongdoing and does not violate the ABA RPC. Using a pretext for the purposes of obtaining basic information about alleged wrongful, or criminal, acts is not a violation of the rules. Similarly, it has been viewed that similar pretexting may be used in civil matters – such as workplace hiring or housing discrimination.

  ‘Secret Shoppers’ has also been a long held acceptable practice and does not constitute any material representation on the part of the investigator or the facts. In consideration of all pretexts is any undue influence of the actions – from using false identities to false information – which may materially mislead the subject and cause the utterance of statements or other actions that would not otherwise occur. This is simply the investigator going beyond the action of posing as a consumer, co-worker, employee or other position.

  As private investigators may work primarily in, or find themselves often involved in, civil and criminal cases in which there is an attorney-investigator relationship, there are some important considerations. We have covered, in generalities, which the investigator cannot record a conversation without disclosure, and the investigator cannot use deceit or trickery to obtain a statement that the subject would not have otherwise provided. In criminal cases there are exceptions. It may come as a surprise to some, hopefully not, but investigators cannot break the law – they cannot commit criminal acts and can also be held civilly responsible for inappropriate actions. The days of using lock picks to enter a residence or office, such as seen on television, are long gone – and were never legal.

  To my clients and colleagues, and in this chapter, are the “Quint-Essential Qualities of a Professional Investigator”. They are simple and add strength to our ethical and professional considerations. One of them states, “Responsible and Ethical Conduct: Every component of the investigation has evidentiary considerations. Professional Investigators hold themselves to a higher standard and leaves no question as to the admissibility of their evidence. Information without ethics is not evidence.” is one of these.

  The duty of the professional private investigator is to hold themselves to a higher standard, conduct all assignments legally and ethically, and to assure that the fruits of their work are without any associated flaws that could find both their reputation and work product tainted. It is not just the reputation and work product of the investigator that becomes questioned, but that of the client and particularly the attorney-client. It is incumbent upon the investigator to know the client, the case, and the Rules of Professional Conduct, as well as any applicable association ethics rules, and the Rules of Evidence. If you are not sure – ask before you act, keeping in mind that not all attorneys know the law and some may not be current on ethics as it relates to your actions. We are professionals – not slimy peeping toms, as one state representative in Colorado recently referred to private investigators.

  The Quint-Essential Qualities of a Professional Investigator

  1. Skills Appropriate for the Assignment

  Law firms and medical offices specialize - Professional Investigators also specialize.  The casework and continuing education should also be in their specialized areas.

  2. Experience and Knowledge

  Professional Investigators strive to maintain and further these.  All professions have requirements of continuing education.  The CLI, CCDI and similar certification programs each require extensive compliance with continuing education.

  3. Responsible and Ethical Conduct

  Every component of the investigation has evidentiary considerations.  Professional Investigators hold themselves to a higher standard and leaves no question as to the admissibility of their evidence.  Information without ethics is not evidence.

  4. Effective Communication

  Professional Investigators maintain communication with the attorney, client, witnesses, and other key persons in the investigation.  Moreover, reports are the product of an organized investigation and should reflect the work product the client requires and expects.

  5. Keyword - 'Professional'

  Honesty, Integrity & Intelligence.  These define Professional Investigators and give the client the confidence that their case is in competent and skilled hands.

  Printed, in part, in ‘The Texas Investigator’ of the Texas Association of Licensed Investigators, October 2010.

  This chapter is adapted from ‘Professional Investigations: Individual Locates, Backgrounds and Assets & Liabilities’ (original self-published and ‘Professional Locate Investigations’ 2002-2006, and ‘Practical Methods for Legal Investigators: Concepts and Protocols in Civil and Criminal Cases’, CRC Press 2011.