In last week’s briefing, our editor Hal Humphreys posed two ethical questions to investigators:
- What do you do if, while you’re working for an attorney, a witness you’re interviewing mentions their lawyer?
- While working for an attorney, you find evidence that the defendant is guilty of the crime for which he’s charged. What do you do?
For answers, Hal turned to Dan Hurley, veteran criminal defense attorney in Lubbock, Texas. Hear their conversation below, or scroll down for a transcript:
Humphreys: This is Hal Humphreys from PI Education, calling Dan Hurley, attorney in Lubbock.
Hurley: Good Morning, Hal!
Humphreys: Tell me why you qualify as an expert on ethics.
Hurley: Well, I have been practicing for 41 years. I was a former assistant district attorney in Lubbock for two years, and then I’ve been in private practice for about 39 years. I’ve been active in the Texas Criminal Defense Lawyers’ Association for many years, involved in education of lawyers and continuing education and seminars for probably 30 years, speaking at many events over the years.
Humphreys: So you’ve got the skills.
Hurley: Yes, and at one time I was held in contempt two or three times by judges, and I became an expert in ethical issues involving attorneys and contempt actions.
Humphreys: Interesting! OK. I’ve got 2 quick questions for you, since we’re dealing primarily with private investigators. If an investigator’s out in the field talking to a witness, and at some point during the conversation the witness says, “Well, my lawyer says, blah blah blah,” what should that investigator do?
Hurley: I think unfortunately, as soon as the investigator knows that the person is represented by an attorney, he has a duty to stop the conversation and seek permission from the attorney. Some attorneys will prohibit further interview. Some will join in and allow the interrogation.
“As soon as the investigator knows that the person is represented by an attorney, he has a duty to stop the conversation and seek permission from the attorney.” —Dan Hurley
Humphreys: But the right thing to do is stop and talk to the party that represents them?
Hurley: Yeah, I think if you don’t, whoever you’re working for is gonna risk their bar license by not following the rules of ethics to contact the attorney of a represented client.
Humphreys: OK. Next question: An investigator is working for a criminal defense lawyer, and the client is in jeopardy. They’re out there doing the investigative work, and they find evidence that is so damning and so clear that the defendant in the case actually did the thing they’re accused of. What should the investigator do?
Hurley: Well the investigator comes under the umbrella of the attorney-client privilege. He is an agent of the attorney. The attorney can never disclose a past criminal act that he learns in a criminal consultation, and that applies to the investigator also. So the investigator cannot disclose a past act. Now, if the investigator learns of an act that’s being presently committed or going to be committed in the future, he probably needs to advise his hiring attorney immediately.
Humphreys: Right. The reason I ask that question is I’ve talked to investigators who say, “If I find the smoking gun, I have a duty to tell the police or the DA’s office.” And we’ve gotten into shouting matches over that.
Hurley: Well, there may be a difference in uncovering evidence like a smoking gun that is necessary to law enforcement. But if it is an oral statement or a private communication from an individual to the investigator, the investigator can cause the attorney to lose his license to practice law by turning that over to the police.
Humphreys: And those are the two questions I needed answered! Dan Hurley, thank you so much for joining me!
Hurley: Absolutely, Hal. Anytime!
Thanks for chiming in, everyone! If you’ve had experience with either of these scenarios, share what you’ve learned in the comments section.