ETHICAL ADVOCACY

Since becoming a private investigator, I have been learning about and evolving my position regarding our role for our clients, especially our attorney clients.  Are we un-opinionated fact gathers whose sole responsibility is to observe and report?  Or are we champions of our client’s cause?  Initially I was overwhelmingly drawn to the observe and report camp.  However, circumstances and experience have led me to more of a middle ground.

Last year I attended the Dallas Association of Certified Fraud Examiners (ACFE) fraud conference.  It was a great conference with many informative sessions and wonderful speakers.  The best presentation of the day was from the keynote lunchtime speaker.

He was attorney Rusty Hardin from Houston, TX.  He is a former Harris County prosecutor who has been in private practice in Houston for 30 years. His firm splits its time 85% on civil matters and 15% on criminal cases. Two of his high-profile cases was defending Arthur Anderson during the Enron scandal and baseball player Roger Clemens for perjury before congress regarding steroid use. Hardin won exoneration for both clients.

During his presentation Hardin stressed repeatedly the job of the investigator is to be a seeker of truth no matter who is paying his salary. He stated the primary role of the investigator is not to be a cheerleader for the client, but to give the attorney and the client the facts they need to make the best possible decision for the circumstances they are facing. However, Hardin stressed, once the facts are known, then the investigator may be called to become an advocate for the client. He may help to put the facts in context of the events that occurred to give a full and robust picture of the disputed allegations.

Another great and refreshing point Hardin stressed was the fact he never views the opposing counsel, opposing party or government officials as “bad people.” He willingly grants them the belief they are people with good intentions, doing the best job they can. He stated that by holding true to those feelings he does not demonize the other side, and therefore looks for common ground and compromise.

When a PI Doesn’t Trust Their Client 

I had a client who had previously been successfully sued in federal court on RICO fraud allegations.  The loss cost the client millions of dollars, ruined his business, and personally embarrassed him.

When he approached me to help him fight the judgement, I was incredulous.  I thought he was a fraudster and a con man, and I didn’t want any part of him.  This happened shortly after I heard Hardin give his presentation, so I put my prejudices aside and asked the client to tell me his side.  He and his attorneys did a great job explaining to me where they thought the trial court had erred.  It seemed plausible, and I reluctantly became willing to investigate the facts within their scenario of judicial error.

As I did my investigation and reviewed the evidence, I began to see the client’s points.  I didn’t buy into 100% of his story, but I was 80% there.  For the facts I could support, I became the client’s advocate.  I prepared multiple affidavits which were submitted to federal court supporting my client to the extent I felt the facts would.  I wouldn’t go as far as my client wanted in the affidavits, but I helped him where I could.

I had made the ethical mistake of initially demonizing my client, and not believing he may have a valid legal point about judicial error.  I didn’t want to keep an open mind and let the facts dictate the outcome.  Once I put my bias aside and took the facts in full context, I was able to advocate for my client to the extent those facts allowed. 

When a PI Believes Their Client No Matter What

A while ago, I was asked by another private investigator to get involved in a civil wrongful death suit.  The PI was an unabashed cheerleader for the client and as a result the client loved them.  Going into it, I knew nothing about the case.   I reviewed the available evidence, including cell phone data, depositions, police reports, and crime scene forensics.  I found several facts that potentially disputed the client’s and the PI’s version of events.  I mistakenly thought they would look at my observations and either show me where I was wrong or adjust the client’s theory of the case.

The PI didn’t want to hear my observations because their mind and was made up and they were completely inflexible.  The PI concocted complex conspiracy theories involving the opposing party, their friends, local police, and government officials all plotting against the client.  To the PI, I was now part of that giant never-ending conspiracy to screw over their client.

The PI lost all objectivity and ethical decision-making.  They had become such an advocate for their client they could no longer independently view the facts or put them in context.

Ethical Advocates 

As Hardin stated, our number one job is to seek the truth, whether they seemingly support or hurt the client.  We can’t fully believe our client just because they are paying us, because they are good people, or because our “guts” tell us the client is right.  We must keep an open mind – about the client, the opposing side, and the facts.

When the facts logically fit the context of the events the client is describing, then we can advocate and support our client.  Our clients need fair and open-minded investigators.  Fair to them, to the opposing party, and most importantly, to the truth.