Each week we receive calls from people, many of them attorneys, asking us if we can obtain bank records as part of our asset searching. The short answer is, though we probably can obtain the records, we absolutely will not. Obtaining bank records without a court order is illegal, unless they happen to be abandoned on public property.
Of course, there are some investigators that will tell you they can get bank records. Just the other day an attorney told us that a North Carolina investigator got him bank records a few years ago with a social security number. We explained that, in most cases, investigators gain access to account information by pretending to be the account holder, also known as pretexting. Anyone who has dealt with a bank before knows that they tend to ask those seeking access to an account to verify they are the account holder by providing their social security number.
Pretexting to get bank records is expressly illegal under The Gramm-Leach-Bliley Act, violations of which are punishable by hefty fines, up to 5 years in prison or both. In addition to penalties under The Gramm-Leach-Bliley Act, think about how the bank records are going to be used. If you’re engaged in litigation, consider the judge’s perspective. Judges might not take kindly to those evading judgment, but you can also bet they don’t like when judgment-plaintiffs use unlawful means to obtain bank records and will readily exclude them from evidence.
An additional word of caution–if you ask your investigator to get bank records and they do so unlawfully, you, not just your investigator, could be on the Gramm-Leach-Bliley hook as well. The law also prohibits hiring a third party to obtain bank records through false pretenses. Further, attorneys should know that the rules of professional conduct bar an attorney from hiring someone to do something that the attorney himself is not permitted to do.
We prefer to get financial information another way. We comb the public record and conduct interviews that often produce results that are just as valuable to our clients as bank records. Perhaps your debtor owns a $2 million vacation home in Miami or owns three companies with which you were unaware they were even affiliated. We can and do find this kind of information regularly and our clients rest assured that they won’t face time in prison because their investigator broke the law.