Legal Ethics Corner: Attorneys Serving as Investigators Beware

David Wolf

Attorneys investigating matters in connection with the rendering of legal services to their clients is nothing new. California Code of Civil Procedure section 128.7 requires considerable due diligence before filing a lawsuit. In addition to such routine and ancillary inquiries, attorneys are sometimes hired to conduct particular types of investigations, e.g., in workplace discrimination, workplace safety, personal injury, and other types of cases.

In addition to the State Bar Act1 and the California Rules of Professional Conduct (CRPC), attorneys need to consider California’s Private Investigator Act (PIA)2. Persons conducting investigations for specified purposes may be required to have a private investigator license3. Investigations subject to the PIA are those that seek information about: (a) crimes or wrongs done or threatened against the United States or any of its states or territories; (b) the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person; (c) the location, disposition, or recovery of lost or stolen property; (d) the cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property; and (e) securing evidence to be used before any court, board, officer, or investigating committee4.

Licensure exemptions do exist. Under section 7522(e), the PIA does not apply to an “attorney at law in performing his or her duties as an attorney at law.” Pursuant to the PIA, an attorney who is not a licensed investigator cannot accept work as an “investigator,” unless the attorney is performing those “duties as an attorney at law.” The PIA does not spell out what is meant by that phrase, and what constitutes “the practice of law” is not always clear5.

In the employment law context, a well-executed, thorough, and timely investigation can establish a qualified immunity in the face of certain allegations, but a flawed investigation may well assist in establishing pretext6. A PIA violation might well do the same. Importantly, PIA violations are misdemeanors subject to fines up to $5,000 and even imprisonment7. Lawyers hired to conduct investigations are thus well advised to consider the PIA, and structure their engagements and investigative legal work accordingly.


David-WolfAbout the author:

David A. Wolf is a Bay Area attorney who focuses on labor, employment, business and education law.  He is the current chair of BASF’s Legal Ethics Committee.

 


Footnotes:

  1. California Business & Professions Code section 6000, et seq.
  2. California Business & Professions Code sections 7512-7573.
  3. As of this writing, section 7512.3 defines “persons” to include any individual, firm, company, limited liability company, association, organization, partnership, and corporation.
  4. California Business & Professions Code section 7521.
  5. See, e.g., Birbrower Montalbano Condon & Frank v. Superior Court (1998) 17 Cal.4th 119; see also, CRPC 1-311 (outlining employment limitations on disbarred, suspended, and retired attorneys; listing cases discussing what constitutes the practice of law).
  6. See, e.g., Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App. 4th 110; Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334; and Nazir v. United Airlines (2009) 178 Cal.App.4th 243.
  7. California Business & Professions Code section 7523(b).