The Business/Legal Investigator

July 28, 2010

In This Issue:

FACT-FINDERS, NOT FACT-MAKERS
(Investigator Ethics & Overzealousness)
by David B. Watts, CLI, CFE

Advice to Private Investigators:

As investigators in the private sector, we work on behalf of an individual or business client and the client's attorney. In every instance there is actual or anticipated contention between the parties with each side looking to gain advantage over the other. Claims, counter-claims and the potential for gain or loss is at stake. In the midst of this highly charged atmosphere, the investigator conducts his fact-finding research, trying to come up with evidence benefiting the client. While it surely is our duty to diligently uncover, gather and properly present facts that would benefit client interest; there are times when investigator choices come into question. Overzealousness...that is the subject of this article.

With the possible exception of those in the legal profession, there are few other professionals that finds themselves perched on the edge of ethical dilemma as often as investigators. Attorneys are advocates. While bound by their own canon of ethics; lawyers have certain latitude as they represent, argue and plead the client's case. Not so with investigators. The private investigator is on his own in terms of how he conducts his practice and the ethics he applies to his investigative activity.. Physicians are guided by their Hipocratic Oath that begins, "First, do no harm." Investigators would do well to keep those four words out in front of their daily decisions, as well. As we work in the field for our clients, we must remember that our actions will (...and should) be scrutinized by the Court and all others associated with the case. The investigator who will not walk the legal and ethical straight line will end up hurting the client...the very thing he did not set out to do!

When statements are taken from witnesses, the temptation to persuade, dissuade and otherwise slant the facts in the statement is ever present. Subornation of Perjury, a crime, is only a word or phrase away. It is more effective, however, to simply help the witness express what will be his anticipated testimony in a truthful and straightforward manner. Nothing wrong with playing up or down this or that, but all within the bounds of proper ethical behavior. With depositions and maybe trial ahead, others will have their turn with that witness, so why try to contaminate the process and ultimately embarass yourself? We are fact-finders, not fact-makers!

When a client suggests an activity that the investigator knows is against the law, such as wiretapping, trespass or intimidation, the client should be informed of the law and steered towards a legal and ethical approach to the problem.

If an offering appears unethical, it likely is just that! Those who sell access to telephone records, bank and investment accounts and medical records are out there; but they are like roadside bombs waiting for a victim. What good does evidence do if you cannot use it? Oh...I know, some might say, "It's just for intelligence purposes." Again, not only can this data be discovered and become more damage than good to the cient's case, the investigator's reputation is ruined.

Lastly, be honest in your reporting and billing. No case, amount of money, or client for that matter, is worth risking your license, reputation and livelihood.

There may be some thinking I am naive. They might say, "Do whatever it takes to satisfy the client's expectation, no matter how you do it." Think again and first do no harm! We all want the best for our clients, but the bottom-line advice is to stay within the lines and sleep better at night.

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Getting the facts…that’s what we do!