Companion Guide to Video Course

“PROFESSIONAL INVESTIGATIONS: INVESTIGATOR AND ATTORNEY ETHICS FOR THE PI, CONSUMER AND CLIENT”

Presented by

Associates in Forensic Investigations Dean A. Beers, CLI, CCDI

and Karen S. Beers, BSW, CCDI

http://udemy.InvestigativeCourses.com

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Dedicated to our friends and colleagues,

throughout this country and world, of this great profession … “Together We’re Better!”

Professional Investigations: Investigator and Attorney Ethics for the PI, Consumer, and Client

March 2015 for ebook distribution Udemy Investigative Courses Companion Guide Edition

Copyrighted 2002 et seq as revised for 2015 Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI

Associates in Forensic Investigations, LLC

All Rights Reserved. No parts of this guide or video may be used or reproduced, in any manner whatsoever, without written permission;

except in the case of brief quotations embodied in critical articles or reviews.

For information, email Associates@InvestigativeCourses.com Published and Distributed in electronic format for Udemy.com

United States of America – 2015

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INVESTIGATOR AND ATTORNEY ETHICS

FOR THE PI, CONSUMER AND CLIENTPresented by…

Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI

(970) 480-7793 / (307) 222-0136associates@InvestigativeCourses.com

Free Companion Guidehttp://ethics.InvestigativeCourses.com

Additional titles at http://astore.amazon.com/assoinforeinv-20/detail/B0052G0MQY

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About your instructors…

Dean A. Beers, CLI, CCDI began his investigative career in 1987.

He is a Certified Legal Investigator (CLI) and Certified Criminal

Defense Investigator (CCDI), and expert in criminal defense

homicide and civil equivocal death investigations. He is certified in

Medicolegal Death Investigations and served as a forensic autopsy

assistant. He has lectured extensively and authored multiple

articles, peer-reviewed white papers, and provided expert testimony

on Protocols of Private Investigation, and Forensic Investigation of

Injury Pattern Analysis. He authored Professional Locate Investigations

and recently completed Practical Methods for Legal Investigations:

Concepts and Protocols in Civil and Criminal Cases, released by CRC

Press in February 2011. With Karen he co-developed 'Death

Investigation for Professional Investigators' online continuing

education for 14 states – and soon here on Udemy!

About your instructors…

Karen S. Beers, BSW, CCDI began learning and working the

investigative profession in 1996. She earned her Bachelor's in

Social Work (BSW) from Colorado State University (Magna Cum

Laude). She is also a Certified Criminal Defense Investigator

(CCDI); they are one of three husband & wife team CCDIs. Karen

is also certified in Medicolegal Death Investigations. Her

background, education and experience with victim advocacy and

counseling are valuable assets in working with families and victims

of traumatic events. Her death investigation training and

experience, together with her social work and general investigative

skills and experience, are an asset to the medicolegal and criminal

defense investigative processes.

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Disclaimer

This instructional video and accompanying guide is not intended as

or offering legal advice. Please consult with an attorney or the

appropriation regulating entity for attorneys and/or Professional

Investigators.

This instructional video is based on Colorado Rules of Professional

Conduct for attorneys, as well as the American Bar Association.

Additional information is provided as referenced.

What will be covered today…

Common ethical issues that arise include:

� Using a ruse and false identities

� Personal or other inappropriate contact with a

represented opposing party

� Surreptitiously recording conversations

� Entering onto private property or other

prohibited area

� Extending any contact (lawful or not) with a

party into a relationship beyond the scope of the

assignment.

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What will be covered today…

Consideration in many states, and with the Rules

of Professional Conduct (RPC), is dependent on if

the investigator was retained by an attorney, if the

parties are represented by an attorney, or if the

party retains the investigator directly.

The Attorney-Investigator Relationship

As the consumer or potential client of attorney

and/or investigative services, it is important to

understand the unique relationship that may exist

between them, and how it may relate to your case.

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The Attorney-Investigator Relationship

As licensed Professional Investigators, it is

important to share the many issues of ethics for

investigators. Many, but not all, Professional

Investigators belong to state and national

associations that also have Rules of Ethics specific

to the investigator-attorney relationship.

Much of the Professional Investigators work

involves an attorney relationship, or similar, in civil

and criminal cases.

Ethics – Legal and Client

Responsibilities

The actions taken must be legal. They must also

be justified, including necessity and costs, and

without bias to any person.

Professional Investigators have a responsibility to

our businesses, professions, clients, and even the

subjects, to use self-regulating rules that go beyond

the requirements of the law.

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Ethics – Legal and Client

Responsibilities

Professional Investigators must be sure of their

client and the purpose.

They must not jeopardize any parties to the

investigation, even the subject, to harm; or exceed

their legal authority and permitted purposes.

A sample scenario (civil)

Litigation is ongoing – both parties are represented by attorneys.

A plaintiff has been involved in a motor vehicle collision. The

defense counsel would like to know if he is working the farm he

owns or if he has hired help.

On three separate occasions three separate investigators, using a

ruse and false identities, visit the plaintiff and record their

conversations. The investigators may have been retained by the

defense attorney or the defendant directly.

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A sample scenario (civil)

To speak with the plaintiff they entered the property through a gate that was

chained, but not locked. A sign on the property read “Fresh Produce for Sale –

call 555-1212”.

In one of the conversations the investigator related a story of having been hurt

bad in a car accident and really frustrated with the whole legal process and finally

just settled to get it over with.

It was then that the plaintiff expressed his frustrations and that he would not

settle because his attorney told him that his injuries were serious and worth a

large settlement; he just had to wait it out.

One investigator kept returning in an attempt to develop a friendship.

Discussion from sample scenario (civil)

As it pertains to ethics…

1. What should be determined in this scenario?

2. What was ethical about this scenario?

3. What was unethical about this scenario?

4. What factors might change these ethical and

unethical behaviors to the other – what guides our

actions?

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The Attorney-Investigator Relationship

Working for the attorney creates a relationship in which the investigator is the agent of the attorney (CRPC Rule 5.3 referring to Rule 4.2).

This relationship requires that the investigator follow the same rules (ethics, procedures and evidence) as the attorney. Working directly for a private party is not applicable – but consider how your work product will be used.

Contacting Represented Parties

Attorneys and their agents, including Professional

Investigators, cannot contact represented parties.

Per the American Bar Association (ABA) and state bar associations RPC, an attorney and therefore any agent, “shall not … communicate or cause another to communicate on the

subject of the representation with a party he know[s] to be

represented by a lawyer in that matter unless he has the prior consent

of the lawyer representing such other party or is authorized by law to

do so.”

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CRPC Rule 5.2

Communications with Persons Represented by Counsel:“In representing a client, a lawyer shall not communicate about the

subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer or is authorized to do so by law or a court

order.” As agents of the attorney, this is applicable to the investigator.

Attorney-Investigator Ethics Highlights

� Although entrapment can only be the action of law enforcement and is criminal, all reputable professional investigator associations have an ethics clause against entrapment. � It is generally unethical to give a leading or misleading statement as it may produce a response that would not otherwise be the normal words of the subject. � Although an individual cannot violate another’s Constitutional rights, it is generally unethical to perform any duty or action that would violate a person’s Constitutional rights.

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Attorney-Investigator Ethics Highlights

An invasion of privacy occurs when a person

encroaches upon the place of solitude or seclusion,

and such encroachment is highly offensive to the

reasonable person. This includes using deceit or

trickery. This may or may not be physical

trespassing. This may occur by phone, email, fax

and email – any form of communication or

interaction.

Surreptitious Recordings of

Conversations

Recording a conversation is dependent on the

state of both the calling and called party, as well as

those in a public or private place and the

reasonable expectation of privacy.

Consent may require only one party (i.e. the caller)

or both parties. Only 12 states are two-party

consent states (CA, CT, FL, IL, MD, MA, MI,

MT, NV, NH and WA).

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Surreptitious Recordings of

Conversations

Pursuant to many state bar associations’ RPC,

attorneys (and their agents) may not electronically

record a conversation with another party without

first informing that party that the conversation is

being recorded.

These conversations cannot be electronically

recorded without first informing that party that the

conversation was being recorded.

Surreptitious Recordings of

Conversations

IMPORTANT: Attorneys, Investigators and

Private Clients of these…

An attorney (or their agent) may not circumvent

this ethical obligation by requesting their clients

secretly record conversations to which the attorney

is a party.

An attorney may not solicit the aid of clients to

undertake an action that the attorney is ethically

prohibited from undertaking.

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Colorado Bar Association, Ethics Opinion 112:

Surreptitious Recording of Conversations or

Statements, 07/19/03,

“Because surreptitious recording of conversations or statements by an

attorney may involve an element of trickery or deceit … a lawyer

generally may not direct or even authorize an agent to surreptitiously

record conversations, and may not use the ‘fruit’ of such improper

recordings.”

“However, where a client lawfully and independently records

conversations, the lawyer is not required to advise the client to cease

its recording, nor to decline to use the lawfully- and independently-

obtained recording.”

Colorado Bar Association, Ethics Opinion 112:

Surreptitious Recording of Conversations or

Statements, 07/19/03,

“… assuming that relevant law does not prohibit the

recording, there are two categories of circumstances in which

attorneys generally should be ethically permitted to engage in

surreptitious recording or to direct surreptitious recording by

another: (a) in connection with actual or potential criminal

matters, for the purpose of gathering admissible evidence;

and (b) in matters … exclusively to the lawyer’s private

life.”

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Colorado Bar Association, Ethics Opinion 112:

Surreptitious Recording of Conversations or

Statements, 07/19/03,

“One reason for an attorney [and agents] intentionally not disclosing that a particular conversation or statement is being

recorded may be a belief that the person whose conversation is being

recorded would choose his words more carefully, or speak less freely,

or not at all, if such knowledge were imparted to him.”

“There is inherent in the undisclosed use of a recording device under

these circumstances an element of deception, artifice or trickery which

falls below the standard of candor and fairness which all attorneys

[and agents] are bound to uphold.”

Colorado Bar Association, Ethics Opinion 112:

Surreptitious Recording of Conversations or

Statements, 07/19/03,

“Colorado Rule 8.4(c), like prior DR-1-102, prohibits

‘conduct involving dishonesty, fraud, deceit or

misrepresentation.’ As a result, for the same reason that

CBA 22 and the Colorado Supreme Court concluded that

it is improper for an attorney to surreptitiously record

conversations or statements.”

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Colorado Bar Association, Ethics Opinion 112:

Surreptitious Recording of Conversations or

Statements, 07/19/03,

“For the same reasons, it is also generally improper for an attorney

to direct or even authorize another, such as an investigator or legal

assistant, to record conversations surreptitiously.

Colo. RPC 8.4(a) (it is misconduct for lawyer to violate rules

through the act of another); e.g., CBA Ethics Comm. Abstract

98/99-05 (where Professional Investigator retained by an attorney

surreptitiously recorded a witness interview without the lawyer’s prior

knowledge or approval, the attorney should not listen to or use the

tape without the witness’ permission).”

What does this mean?

In the attorney-investigator relationship:� The investigator cannot record a conversation without

disclosure; except in criminal cases to obtain otherwise unobtainable evidence.

� The investigator cannot use deceit or trickery to obtain a statement that the subject would not have otherwise provided. In criminal cases there are exceptions.

� The investigator cannot break the law.

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Back to our scenario - good and bad?

� The investigators engaged the plaintiff in surreptitiously recorded conversations.

� Statements included what was otherwise attorney-client privilege that would likely have not been uttered were it not for the ruse of the investigator’s own experience.

� One investigator continued contact (personal, phone and email) as a ‘friend’ after his services were completed.

To Review…

Professional Investigators may work primarily in, or find themselves often involved in, civil and criminal cases in which there is an attorney-investigator relationship

� The investigator cannot record a conversation without disclosure

� The investigator cannot use deceit or trickery to obtain a

statement that the subject would not have otherwise provided.

� The investigator cannot break the law – they cannot commit

criminal acts and can also be held civilly responsible for

inappropriate actions.

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To Review…

The duties of the Professional Investigator is to:� Hold themselves to a higher standard� Conduct all assignments legally and ethically� Assure that the fruits of their work are without any

associated flaws that could find both their reputation and work product tainted

It is not just the reputation and work product of the investigator that becomes questioned, but that of the client and particularly the attorney-client.

Recommended

Ethics of the Professional Investigator

Our agency has researched and compiled the

ethics of several state, national and international

associations. This PDF document is available

from our agency website. It is highly

recommended that all Professional Investigators,

Attorneys, and Consumers review these ethics and

expect the same from the Professional Investigator

they retain for services.

http://www.deathcasereview.com/ethics.html

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The Quint-Essential Qualities of a

Professional Investigator

1. Skills Appropriate for the Assignment

Law firms and medical offices specialize - Professional

Investigators also specialize. The casework and continuing

education should also be in their specialized areas.

The Quint-Essential Qualities of a

Professional Investigator

2. Experience and Knowledge

Professional Investigators strive to maintain and further

these. All professions have requirements of continuing

education. The CLI, CCDI and similar certification

programs each require extensive compliance with continuing

education.

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The Quint-Essential Qualities of a

Professional Investigator

3. Responsible and Ethical Conduct

Every component of the investigation has evidentiary

considerations. Professional Investigators hold themselves to

a higher standard and leaves no question as to the

admissibility of their evidence. Information without ethics is

not evidence.

The Quint-Essential Qualities of a

Professional Investigator

4. Effective Communication

Professional Investigators maintain communication with the

attorney, client, witnesses, and other key persons in the

investigation. Moreover, reports are the product of an

organized investigation and should reflect the work product

the client requires and expects.

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The Quint-Essential Qualities of a

Professional Investigator

5. Keyword - 'Professional'

Honesty, Integrity & Intelligence. These define Professional

Investigators and give the client the confidence that their case

is in competent and skilled hands.

In Conclusion

� The attorney and Professional Investigator

must know and follow the Rules of Professional

Conduct, as well as any state regulatory and

association ethics rules.

� Not all attorneys, or Professional Investigators,

know the law.

� Professional Investigators are professionals –

expect professional conduct from them and the

attorney.

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Free Companion Guidehttp://ethics.InvestigativeCourses.com

Additional titles at http://astore.amazon.com/assoinforeinv-20/detail/B0052G0MQY

Thank You!

RECOMMENDED BOOKS

The following are books found in our library and recommended by others. These are for sale online at many popular investigative and general bookstores. This is not a comprehensive list, there are many fine investigative books, please check with colleagues and other professional recommendations.

Please check our agency website for updates on articles and compiled articles. We will be adding to this ‘Professional Investigations’ series by eBook at www.SmashWords.com. Our agency link for updates is: http://resources.forensic-investigators.com

• Advanced Forensic Civil Investigations – Paul J. Ciolino, CLI and Grace Elting Castle, CLI; Lawyers and Judges Publishing

• Advanced Forensic Criminal Defense Investigations - Paul J. Ciolino, CLI and Grace Elting Castle, CLI; Lawyers and Judges Publishing, Tucson AZ

• Code of Professional Conduct – Kitty Hailey, CLI; Lawyers and Judges Publishing

• Criminal Investigation – Wayne W. Bennett, LL.B and Karen M. Hess, PhD; Wadsworth/Thomson Learning

• Criminal Investigation for the Professional Investigator – Warren Sonne, CLI; Taylor & Francis

• Forensic Testimonial Evidence Recovery (FTER) – Brandon Perron, CCDI, Investigative Support Specialists

• Investigations in the Work Place – Eugene F. Ferraro, CPP, CFE, PCI; Taylor & Francis

• Practical Method for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases – Dean A. Beers, CLI, CCDI; CRC Press

• Practical Handbook for Professional Investigators – Rory J. McMahon, CLI, CFE; CRC Press

• Professional Investigations: Individual Locates, Backgrounds and Assets & Liabilities – Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI, www.ProfessionalLocateInvestigations.com

• Techniques of Legal Investigation – Anthony Golec, CLI; Charles C. Thomas Publisher

• Uncovering Reasonable Doubt: The Component Method – Brandon A. Perron, CCDI; Investigative Support Specialists

EDUCATIONAL AND PROFESSIONAL RESOURCES

The following educational resources are used by our agency, as well as the training programs we offer in death investigation and injury causation. Information is available via the links provided. This is not a comprehensive list, there are many fine investigative books, please check with colleagues and other professional recommendations.

Please check our agency website for training updates. This link is at: http://www.forensic-investigators.com/training.html

Medicolegal Death Investigations for the Private Investigator

This death investigation course is a basic introduction into the concepts of the official investigation of death, such as by a coroner or medical examiner office, and the role that the private investigator may play in an equivocal death investigation. As might be expected, there are similar roles, overlapping roles and, of course different roles and responsibilities.

This course is designed to provide the investigator currently working in, or interested in working in, the death and personal injury investigation fields the knowledge and insight to informatively and intelligently conduct a criminal defense or civil investigation in which serious bodily injury or death is the subject matter of the litigation.

This course is approved for 14 hours of instruction in Texas, Oklahoma, and Iowa; 12 hours in Georgia, Tennessee and Kentucky; 7 hours in Louisiana; 8 hours in Kansas; 10 hours in Oregon and South Carolina; 6 hours in North Carolina; 4 hours in New Mexico. An exam will be administered upon the conclusion of the program. If the candidate passes with a score of 75% or better, a certificate of completion will be issued in accordance with state licensing authority standards.

This CE program has been approved by the Louisiana State Board of Private Investigator Examiners on 3-1-2011 and is valid for one year from this date for SEVEN (7) HOURS OF CE CREDIT. With the purchase of this course you will receive the mandated LSBPIE Ethics course (1 CEU Hour) for free. When you have completed this course you will then be able to register yourself for the free LSBPIE Ethics Course.

Distance Learning for Law Enforcement, PIs and Security

Attention law enforcement and investigators...these distance learning courses are offered by Associates in Forensic Investigations, LLC in partnership with S2 Safety & Intelligence Institute. These courses are specifically geared for the busy working professional who doesn't have the time to travel or the time to sit in a classroom all day. For budget-conscious organizations, our online courses also offer a cost-effective way to train personnel without incurring travel expenses or lost productivity due to training time.http://s2institute.forensic-investigators.com

Learn About Becoming a PI!

Be a Private Eye is the premier resource for private investigator training, information and education. This online private investigator course will teach you how to become a P.I. quickly.

It’s an easy and inexpensive way for someone to find out what being a PI is about, what it takes to get involved and gets them started on the basics.

If you're interested in what it takes to be a PI, review a free chapter of this online course, developed by a PIs for PIs.http://pitraining.forensic-investigators.com

The PI Case File (Paul Purcell)

Detail, organization, standardization, and adaptability are requirements of any system designed to help investigators improve the efficiency of their efforts, to be more organized and professional, and to increase their financial bottom line. Designed by an investigator for investigators, "The Case File" more than meets those requirements.

Detail with SimplicityThough forms-based, the "Investigator Package" is NOT a collection of random forms, but a comprehensive system composed of over 110 pages of detailed and professional worksheets and data forms that make up interrelated sections of a highly functional yet simple to use investigation / case management system.

The Attorney Case File (Paul Purcell)

The Attorney Case File System is the "Ultimate Case Management System" This product is the only one on the market offering full user customization in a three-component package focused on actual law office work and not just simple filings or invoicing alone.

Case / Client WorkbookThe case revolves around the client and their needs. This workbook makes sure you gather every detail about your client, their needs, and every associated step, billable hour, and nuance of the case itself.

Investigation WorkbookMany cases will involve an investigation. If you rely on in-house staff, this workbook is their "investigation in a box."

Trial NotebookRegardless whether your day in court is a simple hearing or a criminal or civil trial involving a jury, the Trial Notebook will help ensure you have all details accounted for.