Listen: Private Investigator and Attorney Work Product
According to Cornell University’s Legal Information Institute, Attorney Work Product is “…a rule that an opposing party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation.” This rule allows an attorney to investigate and prepare your case in a confidential manner without fear of having to reveal his legal strategy or other case information to the opposing party. Another very important legal concept that is part and parcel to this is the age-old Attorney Client Privilege. This legal privilege protects communications between an attorney and his client and is sacrosanct. This privilege is critical. It allows a client to consult an attorney and to do so openly and honestly so that the attorney can provide the best representation possible. Without it, clients would not be free to provide all the details of their particular situation. As you can imagine this is particularly germane to criminal matters. It should be noted that this privilege belongs to the client, not the attorney. Only the client can waive the privilege.
So what does all this have to do with a Private Investigator? Isn’t everything I tell a private eye also confidential? Well, yes and no. Everything you discuss with a private investigator is considered confidential whether you hire him or not. However, unlike the attorney client privilege, there are no such legal protections between private investigators and their clients. A good private investigator will keep all case details strictly confidential. However, they may be subpoenaed and forced by the courts to testify as to the details of your case. But there’s a way you can prevent that from happening.
It may not always be the case, but when you need a private investigator you may find that you need an attorney as well. A private eye can gather evidence and leverage your ability to prevail in your situation, which in turn can help a good attorney carry the day in court. This doesn’t mean that if you need a private investigator you must also hire an attorney. But it may be a wise move, especially if you foresee your particular situation resulting in litigation.
So how do you work with a private investigator and still maintain the confidentiality of your case? It’s rather simple. You hire an attorney and then have the attorney hire the investigator. Rather than working for you directly, the private investigator will work for the attorney. That way most of what the investigator discovers and submits to the attorney is covered under Attorney Work Product. It’s privileged information. That doesn’t necessarily mean that the opposing party can’t learn the same information, there’s more than one way to skin a cat. But it does mean that when it comes to your investigator the information he learns and the statements he takes are protected. The private investigator cannot be compelled to divulge what he has learned (Keep in mind I am not an attorney and this is not legal advice).
Until next time,
This is Scott Fulmer, the Utah Gumshoe, reminding you that the game…is afoot!
About The Utah Gumshoe Podcast
The Utah Gumshoe Podcast follows the real-life exploits, riveting case stories, investigative tips and insightful advice of Scott Fulmer, The Utah Gumshoe. Scott is a 20 year veteran Utah private investigator, surveillance expert and President/CEO of intellUTAH, a private investigation firm based in Salt Lake City.
He has written numerous articles on investigative and surveillance techniques that have appeared in PInow.com and other industry journals. He is a decorated combat veteran of the Persian Gulf War where he served with the famous 2nd Armored Division (Hell on Wheels). Whether you're a novice or an experienced investigator this is the podcast for you.