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ABA Should Update Ethics Guidance on Using Private Investigators

Dec. 2, 2022, 9:00 AM

In November, Washington D.C.’s attorney general filed a civil lawsuit against Dan Snyder, owner of the city’s National Football League team. The complaint alleges that Snyder colluded with NFL Commissioner Roger Goodell.

Snyder is accused of deceiving fans and residents about the NFL’s investigation into the team’s allegedly toxic workplace culture and accusations of sexual assault—all to maintain a strong fan base and increase profits.

Five years after the #MeToo movement went viral, allegations of sexual harassment and misconduct within the organization emerged, along with Snyder’s alleged attempts to discredit or intimidate relevant witnesses.

The case highlights the need to reexamine parameters around how lawyers may use private investigators to gather evidence for a case.

Counter-Offensive

Snyder is now reportedly exploring a sale of the team, apparently in response to a federal investigation and recent allegations about his attempts to dig up dirt on other NFL team owners and Goodell.

A congressional committee that has looked deeply at Snyder and the team for nearly a year found that Snyder “abused the subpoena power of federal courts to obtain private emails, call logs, and communications” as part of his efforts to discredit witnesses and kill negative press stories.

Perhaps now that Snyder’s unethical intimidation and investigation tactics are aimed at powerful individuals, the league will finally take action to hold Snyder accountable.

Regardless of how the NFL responds, the American Bar Association would be wise to issue updated guidance and a reminder to lawyers of the ethical considerations when using private investigators.

As my former law firm’s representation of Harvey Weinstein showed, attorneys are often tasked with hiring and managing these operations so clients can protect their findings under the cloak of attorney-client privilege. Snyder, likewise, employed a law firmto hire the private investigators that harassed and intimidated dozens of former team employees.

The use of private investigators as a tool for providing attorneys with information in preparation for litigation is not new. Investigators are regularly engaged by attorneys on various assignments, including interviewing potential witnesses, serving documents, and locating assets.

However, as Weinstein’s and Snyder’s cases demonstrate, the use of private investigators can quickly become nefarious, moving away from providing attorneys with independent and objective evidence to harassing and intimidating witnesses or survivors.

This has created a professional ethics dilemma that has only more recently entered the public conversation with respect to sexual harassment cases.

Model Rules Refresh

The ABA recently issued a new Model Legal Services Agreement to guide attorneys on how best to represent victims of gender-based violence. The updated guidance is part of an effort by the ABA to “set the framework for trauma-informed, client-centered representation.”

But just as important as counseling attorneys who represent victims of sexual misconduct is providing ethical guidance to the lawyers who represent their adversaries.

Under the ABA’s Model Rules of Professional Conduct, unethical or illegal conduct committed by a private investigator can be imputed to the lawyers who hired them.

Investigators may violate the ABA’s ethics rules if they make false statements of fact or law, communicate with a witness who is represented by counsel, or engage in fraud, dishonesty, or criminal acts. Any of these behaviors may then be imputed to the attorney or law firm responsible for overseeing the investigator’s work.

Attorneys facing civil claims from an investigator’s actions that include fraud, dishonesty, or criminal acts will be unsuccessful in getting their professional liability carriers to pay damages on such a claim, since the majority of professional liability policies exclude coverage for this type of conduct.

The ABA should make clear that there are high penalties for failing to ensure a private investigator is behaving in an ethical manner, and that corrective action will be taken against those who fail to do so.

When attorneys enable the well-documented abusive behavior of problematic leaders like Dan Snyder and Harvey Weinstein, they exacerbate systemic problems, where they could instead help resolve them.

Five years after #MeToo, survivors of sexual misconduct and the lawyers who stand by them deserve better.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Ally Coll is an assistant professor of legal studies at George Mason University and president and co-founder of the Purple Campaign, a non-profit organization dedicated to addressing workplace harassment.