Using Private Investigators in Your Legal Battles: Common Pitfalls and Best Practices

Are you curious about hiring a private investigator in your divorce case? 

Law firms often turn to the use of private investigators to find out additional information about opposing parties. While the practice is growing in trend, there are some common pitfalls you need to be sure to avoid. 

In Washington D.C., there are two rules of professional conduct that are relevant to attorneys to using private investigators in their cases. D.C. Rules of Professional Conduct 1.3 mandates that counsel should represent a client zealously and diligently. Rule 3.1 of the Code of Professional Conduct states that lawyers are required to inform themselves about the facts of their clients’ cases and determine that they can make good faith arguments in support of their clients’ positions. 

What are some common pitfalls when using private investigators? 

You should stay far away from lawyers and investigators who engage in pretexting. Pretexting is the practice of contacting witnesses either by phone, in-person, by e-mail, or through social media and misrepresenting your identity to get information. The temptation to engage in pretexting is high, as lawyers and investigators know that they are more likely to get people to talk to them if they conceal their true identity. While pretexting can be highly successful, it is a violation of DC Rules of Professional Conduct 4.1 and 8.4, as well as mail and wire fraud statutes, and the FTC Act. 

You should also be wary of investigators who engage in so-called, “dumpster diving.” While it may be tempting to think that anything put in a trash can is fair game, if the dumpster is located on private property (such as at an apartment complex), or if there are jurisdictional regulations prohibiting such acts, the lawyer or investigator can be liable for trespassing. 

So, what are the best practices? 

Any hired private investigator should be hired through legal counsel. An investigator’s work is generally going to be protected under work product doctrine if hired by counsel, otherwise, the investigator’s work will be open to discovery. An attorney can also set and document in writing clear rules and guidelines for the investigator’s conduct. 

Markham Law Firm has experience ethically using private investigators in family law litigation cases. To learn more about how Markham Law Firm can help you through your domestic dispute please call us at (240)-396-4373. Markham Law Firm is located in downtown Bethesda, MD.