In a white-collar case, the prosecutors have the FBI on their side. A private lawyer can’t call on armed agents to investigate a case. Hiring a good private investigator, then, can make all the difference. A skillful and diligent investigator can chase leads, discover key facts, find witnesses and gather the information necessary to build a case. But there is a risk if your investigator crosses the line into illegal conduct.
Earlier this month, charges were filed against Eric Saldarriaga. He is an investigator whose clients apparently include 20 New York City law firms. He pleaded guilty to conspiracy to hack into private email accounts to help his clients. (So far, no law firm has been charged.) These charges are a cautionary tale for every lawyer who hires an investigator.
Eric Saldarriaga’s Guilty Plea
Mr. Saldarriaga was a private investigator working in New York City. According to the government’s information, Mr. Saldarriaga enlisted a hacking organization to get access to more than sixty email accounts over the last six years.
In 2009, he supposedly responded to an internet advertisement offering hacking services. The unnamed hackers then sent “phishing” emails under the name “Emmanuela Gelpi” to a number of individuals under investigation by Mr. Saldarriaga and successfully obtained their email login credentials.
Using those illegally-obtained login credentials, Mr. Saldarriaga then allegedly reviewed the individuals’ private email messages for his professional (and sometimes personal) benefit.
The Ethics Rules at Issue
Today’s technological landscape puts new responsibilities on lawyers who much (1) protect their clients’ secrets and (2) zealously represent their clients’ interests.
Generally, a lawyer must exercise “reasonable care” to prevent disclosure of confidential information. D.C. Rule of Professional Conduct 1.6(f). Because this concept is rooted in reasonability, a lawyer’s obligations shifts as technology develops. While once it may have been enough to own a locked file cabinet, today’s lawyer might need to enlist a computer specialist or outside contractor to provide IT security.
More relevant here, though, a lawyer has the responsibility to “represent a client zealously and diligently within the bounds of the law.” D.C. Rule of Professional Conduct 1.3(a). As part of this obligation, a lawyer cannot “[f]ail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules.”
The duty to zealously represent a client has two parts—to try our best to achieve what the client wants, while at the same time doing so “within the bounds of the law.”
Under Rule 5.3(c)(1), lawyers are responsible for the misconduct of their investigators if they actively direct the conduct. Had a lawyer directed Mr. Saldarriaga to use illegal means in his investigation, the lawyer could be subject to criminal liability as a co-conspirator and would certainly face disciplinary action.
In a more likely scenario, however, a lawyer may violate the ethical rules by improperly supervising her investigator. The commentary to Rule 5.3 states:
A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising should take account of the fact that they do not have legal training and are not subject to professional discipline.
A lawyer should be sure that her investigator understands which investigative techniques are acceptable and which are not, and should keep careful tabs on what the investigator is doing.
This is an ongoing responsibility. The lawyer should check in periodically and ensure that an investigation falls within legal and ethical boundaries. These days, the ease of hacking (and the wealth of information that electronic data can reveal) can easily blur the line between acceptable investigation technique and illegal conduct.
As lawyers, we must provide the oversight—or else we will be the ones in the government’s crosshairs or facing disciplinary action.
I had a situation like this one when I needed to discover what assets a potential defendant in a civil case owned. I called two highly-regarded investigative firms to find out how they could help. The first firm insisted that they could obtain the defendant’s bank account information and balances. The second firm, however, informed me that there were no legal means to find out bank account balances. Needless to say, I took the advice of the second firm and did not retain the first firm.
Be careful out there.