What You Need to Do Before
Hiring a Private Investigator

By Charles C. Abut

THERE ARE various reasons why a matrimonial attorney may recommend the hiring of a private investigator.  These may include the following: an adultery or other type of "fault" surveillance; security for a spouse being stalked; location and/or identification of missing or concealed assets (e.g., bank accounts, cars, securities); or the presence and use of alcohol or drugs.

The following checklist should be helpful in the process of hiring a private investigator:

Assuming you do not have an established relationship with an investigator, reach out for recommendations from colleagues, clients or other professional sources.  Do not retain an investigator without first reviewing a detailed resume, as well as conducting a personal interview.

Do not simply hire an investigator out of a "yellow pages" environment, and avoid the investigator who lists no address and merely provides a phone number and post office box.

Check with your state licensing authority, not only to verify that the proposed investigator is currently in good standing, but also for the absence of prior misconduct of any kind.

Inquire about whether the investigator has been involved in any litigation, or whether there has been a prior separation from any police or governmental agency, other than on honorable terms.

Verify that the investigator has good back-up.  When necessary, will there be enough agents for multiple surveillance?  How many employees does the investigator have? Interview at the business premises of the investigator, and check for the use of computers and other modern tools (audio, video, photography, etc.).

Avoid the investigator who is either too busy or who is being hired by too many other lawyers and law firms.

The investigator's fee structure should be set forth in writing.  Define the exact parameters of each assignment, whether hourly, daily, by specific task or on some other basis.  Spending limits should be arrived at so that extravagant amounts are not accumulated.

Provide for express language in the investigator's fee agreement, stipulating that the law firm and the client are to be indemnified against any negligence or intentional acts of wrongdoing (making it clear that the investigator agrees to avoid any legal breach, such as trespass, illegal wiretap or invasion of privacy).

Depending on your state law, anticipate the possibility that the investigator's report (whether written or oral) may be discoverable.  Will the report be subject to discovery if the investigator is retained by the lawyer (as opposed to the client) because of the work-product doctrine?

When interviewing the investigator, ask whether any investigative work is being performed for the adversary law firm.  Can you obtain a representation that such an assignment will be refused, as long as your client's pending matter remains unresolved?

Ask for copies of sample reports done for prior clients.  Is the written product of the investigator thorough, precise and to-the-point?

A good private investigation may provide the key to creating a winning strategy for your client.  The matrimonial attorney's due diligence in selecting the right investigator can make all the difference.