As part of your asset searches, you or your lawyer may hire private investigators. These private investigators sometimes interview witnesses to find hidden assets. However, ethical rules apply to your lawyer when he/she employs private investigators for witness interviews. The applicable ethical rules can vary, depending on the state or jurisdiction a lawyer practices law in.
A. AVOID TRICKING WITNESSES WHILE INTERVIEWING THEM
Interviewing witnesses or gathering informants’ tips can be critical to the success of asset searches. The witnesses or tipsters can be an ex-husband or ex-wife; a paramour; disgruntled business partner; bookkeeper; etc. Meanwhile, ethical rules prohibit lawyers from using trickery while interviewing these witnesses and collecting their tips. Therefore, when lawyers hire private investigators, the private investigators should not make misrepresentations to witnesses or trick the witnesses at interviews. Otherwise, the lawyers who hired the investigators could violate ethical rules.
B. ASSET SEARCHES, PRIVATE INVESTIGATORS & A WITNESS INTERVIEW
The following hypothetical featuring a Michigan lawyer, shows how ethical rules can be violated. The Michigan lawyer represents a divorcing wife in her Michigan divorce. The divorcing wife tells the Michigan lawyer that her ultra-high-net worth husband is hiding marital assets. Therefore, the Michigan lawyer hires private investigators to perform asset searches of the husband. Since the husband has a paramour, the Michigan lawyer tells one of the private investigators to befriend the paramour. The private investigator is to use the bogus friendship to interview the paramour about the husband’s assets. The Michigan lawyer also tells the private investigator to use the bogus friendship to conceal the fact that the private investigator works for the Michigan lawyer.
Meanwhile, a review of The Michigan Rules Of Professional Conduct reveals that the Michigan lawyer violated these five ethics rules:
- 4.1 Truthfulness in Statements to Others; see also ABA Model Rule 4.1
- 4.3 Dealing With A Self-Represented Person; see also ABA Model Rule 4.3
- 4.4 Respect for Rights of Third Persons; see also ABA Model Rule 4.4
- 5.3 Responsibilities Regarding Nonlawyer Assistants (includes lawyer’s use of private investigators); see also ABA Model Rule 5.3
- & 8.4 (a) & (b) Misconduct (lawyer can not violate ethical rules through acts of another & prohibits deceit; misrepresentation; etc.); see also ABA Model Rule 8.4
Copyright 2019 Fred L. Abrams