Where do you start in deciding which investigator to hire for a sensitive job?
It should be a business of trust, just as it is when choosing someone to come up with an estate plan, to sue a former business partner, or to handle a complex tax situation. Despite the seriousness of the question, some people just do the electronic equivalent of calling the person with the big ad in the Yellow Pages. But many of us ask for recommendations.
What happens when nobody you know can recommend an investigator who not only delivers results, but does so in a way that doesn’t break the law or the rules of professional responsibility that bind lawyers and their agents?
Try these five screening questions on any investigator you are thinking of hiring:
- Can you get bank account information?
The answer you should hear is, “Not without a court order.” You could then ask them about the Gramm Leach Bliley Act (which protects bank secrecy) and what that federal law lets them see without the approval or a judge or a subpoena. If they tell you it’s all legal to find out where someone banks and what their balance is, think about this: Do you think anyone should be able to find out exactly what you have in the bank, just because they feel like it?
Not only should they not be able to do that. It’s illegal for them to do that unless you meet a tiny list of exceptions (such as being behind on child support payments).
I’ve written extensively about this issue for years and have called many investigators who claim that getting bank account information whenever they want is legal. The funny thing is, they can never explain how they do it. It’s always a matter of “good contacts” with the right banks, as if banks don’t mind violating your privacy if they give the information to a friend who happens to be an investigator.
Of course, you can take your chances and participate in the violation of federal law. Just don’t be completely shocked if the other side finds out about it and gets the evidence excluded and, possibly, brings a professional responsibility claim against you the lawyer who approved this.
- With Google and all your databases, you can do your whole investigation remotely, correct?
Anyone who tells you they can always do everything electronically should be avoided. The United States contains more than 3,000 counties, and state court records are stored at the county level in most cases. Most counties do not have all their records on line. Some do, and some will show you the dockets (the list of documents in a court case) but not the documents themselves.
As for Google, it’s an indispensable tool but consider this: If you Google yourself, you will probably find one or two percent of all the information you know about yourself. You won’t find a complete list of former colleagues, of people you’ve tangled with, dated, done business with.
If there’s only a one or two percent hit rate for you, why should there be so much more for the person you want to investigate?
- What phone calls do you think you would make first?
The answer here need not be a deal-breaker, but if the investigator launches right in with a big list of people, beware. If you want to send an immediate signal to the other side that you are looking at them, then by all means, call up all their best friends (or even their worst enemies). The minute you call anyone, you create a chance that word of your investigation gets back to the subject.
Imagine you are doing an asset search for someone who is considering filing for divorce but hasn’t done so yet. Do you want to tip off the monied spouse that you’re looking around?
- Do you know what the no-contact rule is and how to make sure you don’t violate it?
They had better know exactly what this rule is (model rule 4.2 that deals with communications with people represented by counsel). The states vary somewhat in their interpretation of whom this rule covers, but your investigator ought to know the rules where he works. Get him to tell you what they are. If he just says something like, “Don’t worry, we’ve been doing this for years and we’ve never had any trouble,” run away and find someone else.
They may indeed have had trouble but even if not, do you want to be the client they use to break the mold?
We did an entire article on this issue last year here in talking about interviewing someone’s ex-employees. It’s got some helpful examples of other things you can ask about.
- When you interview someone, how will you introduce yourself?
It is of the utmost importance that your investigator does not lie about who she is or why she is calling. Beyond the obvious illegality of pretending to be the police, for instance, there are professional responsibility concerns at play. Lawyers are not allowed to tell lies (“make untrue statements”) according to the rules. Sure there is some “dissembling” allowed in contract negotiations, and you can be vague without being completely misleading.
But if you are caught telling an outright lie (or allowing your agent to do it), watch out.
In defending himself in an anti-trust case, Uber CEO Travis Kalanick hired an investigator. That investigator then mispresented the purpose of his calls while compiling background information about the plaintiff’s lawyer. Reuters reported on it in 2016. Instead of saying he was working against the lawyer, the investigator pretended he was compiling information for an article about excellent lawyers in the area.
The judge was not amused and ruled what had happened was enough to provide a reasonable basis to suspect that a fraud took place.
Investigators should always use their real names and companies. If you don’t want them to reveal their client’s identity, that’s fine. Let them say they have a client who prefers to remain unidentified. Lots of people will agree to be interviewed even if they don’t know who the information is going to help.
Will all of these tests mean the investigator will do a great job? Not necessarily. You should still get recommendations if you can, but passing the test questions above will reduce the chances of getting into legal or ethical trouble, and who doesn’t want that?
A longer version of this article appeared in the American Bar Association’s Journal “Litigation” in 2017. Link for ABA members only.
Want to know more about how we work? Our website has a wide range of publications and videos. You can also read my book, The Art of Fact Investigation which is available at bookstores online and for order from independent book sellers. And check out our other blog, The Divorce Asset Hunter.
 Meyer v. Kalanick, U.S. District Court for the Southern District of New York, 1:15-cv-09796, document 76 filed Jun. 7, 2016.