Dan Roe's recent article in The American Lawyer recounted problematic actions by private investigators working for various law firms, showcasing investigators hired by Reed Smith on behalf of Dan Snyder and the Washington Commanders as the poster boys for rogue investigators. The questionable tactics used by these investigators were also the subject of hearings before the U.S. House of Representatives Committee on Oversight and Reform. Among other things, they reportedly approached former Commanders cheerleaders who were represented by counsel and, in one instance, an investigator who was a former DEA agent "flashed a badge" at a witness in an apparent attempt to intimidate her.

The article cites ethics experts who concluded that "lawyers may avoid being held accountable for the conduct of nonlawyer assistants so long as they don't order or supervise the assistants' actions." It also suggests, in a subheading, that there are ethical "gray areas" that allow for investigative hijinks. These suggestions are not only mistaken but can't be reconciled with the applicable and well-settled disciplinary rules.

When investigators are engaged by counsel, attention must be paid. Indeed, there is not much "gray area" about the ethical rules that govern lawyers' duties in supervising third parties like investigators and forensic accountants. They are pretty black and white. Rule 5.3 of the ABA Rules of Professional Conduct states that when retaining third parties like investigators, the lawyer having direct supervisory authority shall make reasonable efforts to ensure that the nonlawyer's conduct comports with the lawyer's professional obligations, making it quite clear that lawyers are responsible for the work of the investigators they retain.