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
Any litigator tasking interviews of potential witnesses needs to know about the no-contact rule (ABA Model Rule 4.2)[1], which forbids talking to represented people on the other side of a case. This also goes for most current employees of the other side — certainly any employee senior enough to make critical decisions or
What conveys the truth more effectively?
A snapshot of a person’s values and accomplishments in the form of a quotation? Or a long essay about that person that will contain the short clip but surround it with other facts that could contradict or water down the single line (or build on the quote and infuse
In honor of President’s Day (still officially known as Washington’s Birthday) a few thoughts about interviewing.
There are so many more facts about ourselves that are in our heads (or the heads of people we know) than there are in databases and court cases. Many times, to get as much as the truth as we
The non-legal press doesn’t usually get very deep into questions of legal ethics, but New York Magazine did a reasonable job of it in its hard-hitting piece this week on “The Bad, Good Lawyer” David Boies.
The article asks whether Boies has crossed an ethical line, principally in his work on behalf of Harvey Weinstein
One of the most fruitful avenues of investigation is to look at material that nobody ever thought would harm them. That’s the kind of material people do not take great pains to hide. Why hide it when it won’t hurt you and there is so much else in the world to worry about?
Trusts set
Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:
Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that
“Three may keep a secret,” wrote Benjamin Franklin, “if two of them are dead.” While attorney-client privilege confers a lot of power on lawyers and their agents to keep a secret, the privilege is never absolute. It can be waived by the client anytime, and can be breached in all sorts of ways.
Continue Reading Confidentiality in Interviews: What You Can Promise and What You Can’t
Investigators need to be familiar with all the ins and outs of social media sites in order to best help their clients. For example, through social media we’ve tracked down witnesses for litigation and beneficiaries of wills and trusts. Social media is a great tool for uncovering evidence of adultery in a divorce case. In addition, social media can provide evidence of intellectual property infringements or corporate policy violations.
Unfortunately, keeping up with the changes in social media technology may be easier than keeping up with the changes in Internet law. The legal community and the courts are still trying to figure out how social media, free speech, legal ethics and privacy laws intersect. In fact, it seems like every other week there is an important judicial decision or ethical ruling regarding how social media can and cannot be used in legal and corporate investigations.
Case in point: earlier this month a federal judge in California significantly curtailed the social media postings that defendant Home Depot could obtain in an unlawful termination case brought by a former employee. The Southern California magistrate judge explained that the federal rules dictating that electronic document requests be specific and directly relevant to the lawsuit apply to social media postings as well. Therefore Home Depot’s expansive request for all posts that reveal the plaintiff’s emotional state and every photograph she posted on her social media accounts was impermissibly broad.
So what sort of social media information can investigators working for attorneys obtain for their clients? State Bar associations have been wrestling with this issue for the past several years. The general consensus appears to be that any information that a user made publically available to all members of a network can be obtained without restriction. (see the NYSBA Opinion #843 (9/10/2010) and Philadelphia Bar Opinion 2009-02 (March 2009)) This means that everything is fair game if the user’s privacy settings are turned off.
But what happens if the social media user has privacy settings that block access to anyone who is not a “friend?” In those cases clients will ask if we can overcome this pesky restriction and friend the person using an alias. Our answer is always an unequivocal “No, we can’t.”
Legal ethics decisions dictate that neither an attorney nor an agent working on their behalf, like an investigator, can gain access to any secure information if doing so requires either directly or indirectly deceptive behavior. This means an investigator can’t use an alias and pretend to know the social media user in order to be deemed a “friend” and be granted permission to otherwise restricted information.
Keep in mind that even if the investigator does not use an alias, the act may be deemed unethical. This is because the investigator has omitted a material fact to the social media user–namely that they were being contacted solely to obtain information for an attorney to be used in a pending matter.
The issue is much more complicated if the social media user is a represented or unrepresented party in a pending litigation. If the person is a represented party, then under no circumstances can they be contacted without the prior consent of their lawyer. And if they are unrepresented, then the lawyer can’t claim that they are disinterested in the issue at hand. Furthermore, if the user is unrepresented, the lawyer has an obligation to correct any misunderstandings as to their role and to ensure that they don’t offer any legal advice if the social media user’s interests conflict with those of the attorney’s client.
Continue Reading The Ethics of Using Social Media in Investigations
Recently proposed changes to attorney ethical rules by the American Bar Association (ABA) suggest that the profession sees technical breaches as a serious problem in need of immediate remedies. Earlier this week the ABA Commission on Ethics released a summary of proposed changes to the Model Rules, including a new rule requiring lawyers to take proactive measures to protect their client’s information when using new technologies. The proposed rule suggests that lawyers have to be more aware of both “inadvertent and unauthorized” disclosures–in other words, leaks from inside and hacks from outside a firm. The proposed rule warns technophobes that they need to change their Luddite ways. Lawyers now have a “duty to keep abreast of changes in relevant technology, including the benefits and risks associated with its use.” In other words, claiming ignorance is simply not an excuse.
By putting the onus on lawyers, the ABA is acknowledging what those of us who study and track security breaches have been shouting from the rooftops for years: preventing security breaches is not just about technology; it’s about changing human behavior. As the Wall Street Journal article makes clear, “the weakest link at law firms of any size are often their own employees.”
Other industries face similar problems. For example, a recent article on data breaches in the health care industry suggests that the epidemic of breaches of confidential health care information has more to do with human error than it does with IT shortcomings. As Larry Clinton, president and CEO of the trade association Internet Security Alliance succinctly points out “[p]eople are the biggest problem.” Consequently, Collins predicts that data breaches in hospitals and health care systems will only be prevented if these organizations approach these breaches as a “human-resource management issue and not an IT issue.”
Continue Reading Lawyers and Cybersecurity: Preventing Breaches of Confidential Information