The value and importance of professional investigators cannot be overstated in the handling of a workers' compensation claim. Private investigators and attorneys have an important partnership in a legal case together. Moral and ethical behavior by professional investigators along with their general investigative skills and experience are assets to attorneys during the handling, evaluation and resolution of a litigated workers' compensation matter.

While it is every professional investigator's responsibility to research, know and abide by all statutes, codes, laws, policies, rules and professional ethics, attorneys must exercise due diligence when selecting and engaging a professional investigator. Attorneys are expected to put in a reasonable effort to ensure supervisory authority that corresponds to the lawyer's professional obligations. When professional investigators are hired by an attorney, the investigator's actions must be legal, justified, necessary and without bias. Professional investigators have a responsibility to businesses, professions, clients and the subjects that are the focus of the investigation. It is paramount that the investigator be sure of the client, the subject and the purpose of the investigative assignment. The professional investigator must not jeopardize any parties to the investigation, even the subject, to harm. The professional investigator must not exceed legal authority. In such a case, it is the attorney who will be liable for any consequences arising from the investigator's ethical violations. Ethical considerations may originate in licensing statute, association code of ethics or professional ethics by way of a client's specific instructions.

As a general rule, if an attorney is required to do or prohibited from doing something by the Rules of Professional Conduct, so are any agents hired by the attorney, including private investigators. There are many issues of ethics for professional investigators specific to the investigator-attorney relationship. Much investigative work arises from an attorney relationship. Common ethical issues include: using a ruse and false identities, personal or other inappropriate conduct with a represented opposing party, surreptitiously recording conversations, entering onto private property or other prohibited area, and even extending any contact (lawful or not) with a party into a relationship (business, social or personal) that is beyond the scope of the assignment.

Much consideration is given to whether the professional investigator was retained by an attorney, if the parties are represented by an attorney, or if the party retains the attorney directly. It is important to understand the working for the attorney creates a relationship in which the investigator is the agent of the attorney under American Bar Association Rule of Professional Conduct Rule 5.3. This relationship requires that the professional investigator follow the same rules (ethics, procedures and evidence) as the attorney.

In the course of investigations, it is generally unethical for a professional investigator 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 ruses and pretexts are a form of obtaining information from subjects, it is incumbent for the professional investigator to use caution and follow the direction of the attorney.

Another ethical concern is an invasion of privacy which occurs when a person encroaches upon the place of solitude or seclusion. This includes the use of deceit or trickery during the investigation. This may or may not be a physical trespassing. This may occur by any form of communication or interaction including phone, email and fax.

The American Bar Association as well as state bar associations Rules of Professional Conduct, including Pennsylvania, make clear that an attorney and therefore any agent, shall not communicate or cause another to communicate on the subject of the representation with a party he knows 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. Simply put, neither attorneys nor their agents, including private investigators, may contact represented parties. An attorney may not solicit the aid of his or her clients or agents to undertake an action that the attorney is ethically prohibited from undertaking.

Another ethical concern is surreptitious recordings of conversations by professional investigators hired by attorneys. Because surreptitious recording of conversations or statements may involve an element of trickery or deceit, it is generally improper for any attorney or an agent such as a professional investigator even if the recording may be legal under state law. The lawyer may not direct or even authorize an agent to surreptitiously record conversations, and may not use the "fruit" of such improper recordings.

Yet another tactic used by professional investigators which raises ethical considerations is pretexting. Pretexting is simply the means that an investigator may use by representing himself in such a way that the subject makes admissions or statements and that the subject would not otherwise have uttered, or providing evidence the investigator would otherwise not have obtained. This can include acting as an agent for a business or company. Generally, there are no exceptions for civil cases, while there are limited exceptions for criminal cases.

Working with a professional investigator may be advantageous to an attorney handling a workers' compensation matter. Due to the potential liabilities and risks involved in hiring a private investigator (for both the attorney and client), an attorney seeking to do so should first get written approval from the client, and completely document the selection process to protect against claims of alleged negligence in choosing the investigator. Attorneys should seek referrals from trusted colleagues who have actual working experience with the investigator. However, it is essential for the attorney to closely scrutinize the standards, reputation and work product of professional investigators before engaging one for an assignment. The important qualities of a professional investigator include: skills appropriate for the assignment; experience; knowledge; responsibility and ethical conduct; and effective communication.

In the event the hiring attorney should learn that the private investigator has engaged in any type of improper conduct in the performance of their services, despite all of the attorney's precautions and guidance, the attorney should inform the client, and determine whether immediate termination of the investigator's services is necessary and/or appropriate. The attorney must determine if the investigator's misconduct should be brought to the attention of the court or other appropriate authority. The attorney must also consider whether the circumstances warrant reporting of a potential claim to the attorney's insurance carrier.

In this era of increased attorney accountability and liability for the actions and conduct of their agents, is it a good reminder to all attorneys to perform their due diligence in selecting and exercising their duty of supervision over professional investigators to protect both themselves and their clients during the litigation of a workers' compensation claim.

Zachary M. Rubinich, a partner in the Philadelphia office of Rawle & Henderson, defends and counsels a variety of businesses, insurers and third-party administrators against workers' compensation claims in Pennsylvania. Contact him at [email protected].