As professional investigators, we have certain legal, ethical, and moral obligations.
The problem is: not everybody agrees on what those are.
For apprentice investigators and veterans alike, our legal obligations lie at the foundation of everything we do. But ethical and moral professional behavior reside in murkier areas, with very unclear boundaries. There’s a lot to consider when formulating one’s ethical and moral code, including the following:
- Legal is not ethical, ethical is not moral, and moral is highly personal;
- Legal is federal, state, and local statute and/or policy;
- Ethics are sometimes governed by professional associations and/or certification bodies;
- Morals can prevent you from accepting a case, but should not interfere with an accepted case.
Legalities vs. Ethics
The legal issues pertaining to professional investigators are codified in local ordinances and in state and federal statutes and policies. State and local agencies and departments may impose even more rules to learn and follow. As professional investigators, it’s our responsibility to know and adhere to federal laws, local statutes, and professional standards, because we’ll be held accountable if we don’t.
To complicate matters, what’s legal isn’t necessarily ethical, and vice versa. Whereas legal violations may be punishable by civil and/or criminal remedies, it isn’t so simple to enforce ethical infractions. In certain cases, it’s a duty that may fall to licensing bodies or professional associations, by revoking or suspending licenses or association memberships.
Put simply, ethics govern professional conduct.
There are a number of ways to think about adopting a code of ethics. In a working relationship, your client’s ethical standards may also be your own. Another method might be to adopt the code applied to attorneys in an agent relationship. These ethics are defined in the Rules of Professional Conduct for the American Bar Association, as well as individual state bar associations.
Professional investigators have a similar guide, the Rules of Professional Conduct, as found in the book of the same name by Kitty Hailey, CLI. When an investigator works for an attorney, he serves as the attorney’s agent, which requires that the investigator follow the same rules (ethics, procedures and evidence) as the attorney. (Although this code doesn’t apply to working directly for a private party, it’s always important to consider how your work product will be used and viewed by others).
Ethics vs. Morals
Whereas ethics may have both a legal and a moral foundation, moral behavior is highly individual — governed by cultural, religious, or deeply held personal beliefs. Although morals don’t usually find their way into legal code in Western societies, some have been formalized and codified in religious law — such as the Ten Commandments and the Golden Rule.
As a professional investigator, the time to consider morality is before accepting a case. Once you cash the retainer check, you have a moral obligation to continue, and to serve your client’s interests no matter what. And that’s one reason the client interview is so important — to identify potential moral issues surrounding the case…or the client…before starting work.
Remember, morals are yours alone – not your client’s, attorney’s, or a witness’s. Be prepared to face moral dilemmas at every stage of the case, and in some instances, to address those moral dilemmas and continue the case despite personal qualms. It’s worth considering a few of these moral questions in advance, such as:
- What would you do if you discovered a client was dishonest?
- What if a client’s political, religious, or personal views differ radically from your own?
- What is your obligation if you learn about a crime your client may have committed?
As professional fact-finders, there are times when it’s appropriate to set aside personal morals and beliefs. In certain instances, “It’s nothing personal, only business” may well apply.
Points and Perils to Ponder:
The legal, ethical, and moral responsibilities of professional investigators to themselves, to each other, and to their clients are interwoven, but there are gray areas – legal is not ethical, ethical is not moral. And to further complicate matters, certain investigative practices are considered ethical, but would NOT be if practiced outside the context of an investigation. For example, it may be perfectly ethical and within your job description to conduct surveillance or background check a client’s ex. But if you park in your own ex’s alley for weeks at a time, or put a GPS tracker on his/her car…you get the picture.
Every professional investigator must know not only the the law and his profession’s ethical code; he must know himself, and his own moral compass.
Ask yourself these questions:
Will your personal morals affect your professional duties?
If so, you must assess these in advance and be prepared to decline a case. There is no requirement of our profession to set aside morals for a fee; but once you accept a case, your moral duty is to your client.
Will you be able to address ethical issues with clients who may not be aware of certain limitations?
Be familiar with, at the very least, professional ethical codes that apply to private investigators and attorneys. Ethical violations may have negative professional consequences, and ignorance of ethics is no excuse.
Will you be able to address legal issues with clients who may not be familiar with the law?
You must know the laws that apply to our profession and to your cases. Break the law, and you could lose your license and your livelihood. Ignorance of the law is no excuse.
Entrapment is misunderstood, and therefore, is often inappropriately applied. Although legal entrapment can only result from the action of law enforcement, there are issues to consider for investigators as well.
It is generally unethical to ask leading or misleading questions, as it may produce a response that would not otherwise be the normal words of the subject. It is also unethical to perform any duty or action that would violate a person’s Constitutional rights.
An invasion of privacy occurs when a person encroaches upon someone’s place of solitude or seclusion, and such encroachment is highly offensive to the reasonable person. This includes using deceit or trickery. Even when not physically trespassing, an invasion of privacy may occur by phone, email, fax and email – any form of communication or interaction.
For example, most states are “one-party consent” for surreptitious recordings of communications. Two-party states include California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. These states require that all parties consent when one party wants to record private communications. (note: This applies to where a potentially consenting party is at the time of the communication; not the state their telephone number is assigned.)
Although the rules of ethics do not bar an investigator, retained directly by a private party, from surreptitiously recording a communication (in one-party states), this does not make such deceptive actions good investigative practice. However, a recording while employing deception and trickery to elicit statements that the subject may not otherwise make in a private conversation is a gray area.
For the most part, using a pretext for the purposes of obtaining basic information about alleged wrongful, or criminal, acts is not a violation of the rules of professional conduct. There are notable exceptions. Also, it’s widely held that pretexting may be used in civil matters – such as workplace hiring or housing discrimination investigations. “Secret Shoppers” has also been a long-held acceptable practice and does not constitute any material representation on the part of the investigator or the facts.
But it’s an ethical gray area. And of course, there are many important legal no-nos when it comes to pretexting, including the absolute prohibition against an investigator’s impersonating or insinuating that he is a member of law enforcement.
Avoiding the Pitfalls: Some Do’s and Don’ts in the Attorney-Investigator Relationship:
- The investigator cannot record a conversation without disclosure except in criminal cases to obtain otherwise unobtainable evidence.
- The investigator cannot use deceit or trickery to obtain a statement that the subject would not have otherwise provided. ( In criminal cases there are limited exceptions.)
- The professional investigator cannot break the law or violate professional ethics!
A few simple steps to keep you and your agency safe:
- Develop an agency policy that defines your ethics, compels lawful behavior, and still embraces your morals.
- Use agency policy to say “no” when your morals, ethics, or legal position is not solid.
- Policies should include legal, ethical and moral answers to case acceptance and procedures for your agency and clients.
- It is important to know your client, your case, and the Rules of Professional ConductI, as well as association ethics rules.
- If you are not sure, ask before you act.
- Professional investigators are not attorneys, and it’s best to seek legal advice from an attorney – but not your case attorney-client. Not all attorneys know the law, and at times, an attorney may need to be corrected about requests they may have.
About the Authors:
Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI are both Certified Criminal Defense Investigators, and are Certified in Medicolegal Death Investigations, to include as forensic autopsy assistants. They co-developed “Death Investigation for Private Investigators” distance learning and continuing education at MedicoLegalDeathInvestigations.com. Dean formed the agency in 1987 and focused on general investigations, as well as individual locates, backgrounds and assets & liabilities. Karen began in 1996, gaining knowledge and experience in the same areas.
Dean is a Certified Legal Investigator and expert consultant / witness in criminal defense homicide and civil equivocal death investigations. Karen is an expert in death investigations and has extensive education and experience with victim advocacy and counseling.
“Associate yourself with men of good quality if you esteem your own reputation; for ’tis better to be alone than in bad company.” ~ George Washington