When does green not mean go? As toddlers we drive with our parents and learn that green means go, yellow means caution and red means stop. But then later on, in driving and in life, we learn that green means “go, as long as…”

Private Investigator Ethics.jpgIn New York, green means go but you still need to “yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited,” according to the statute. If you have a green arrow, you may “cautiously” enter the intersection.

What does any of this have to do with investigation? Plenty. When a client asks us to gather information, we assume until told otherwise that we have a red light as to picking up a phone and calling people. As we tell clients every week, there is always a chance that the person you are investigating will find out about it once you start calling around and asking questions about that person. The decision to take a chance that an investigation will surface belongs to the client.

Now suppose the client says, “Go ahead, green light to call people.” Does that mean the light stays green for the rest of the investigation or even the rest of that day? Not necessarily.

If we call Mr. Garcia to ask about Mr. Stein, we are on yellow and not green, whatever the client may think. That’s because if it turns out Mr. Garcia is represented by an attorney in this matter, the light turns red and we have to terminate the call so as not to violate the no-contact rule of professional ethics. The light is also yellow until you make sure to tell the person you are interviewing that you don’t want to find out any information that’s privileged or confidential. We wrote about this in Trial Ethics: A Template Can Save Your Life.

In what other situations would the light turn from green to red?

  1. The client changes his mind for any reason and tells us to stop calling.
  2. We find out that despite our best efforts and warnings that it could happen, our investigation has made its way back to Mr. Stein. We may then need to call the client to get permission to continue calling.
  3. The client instructs us to use the phone to obtain information we are not allowed to get, including bank accounts, phone records and medical records. The client is normally king, but nobody can prevail on us to violate a statute.