A Guide to Business Organization Flexible_11

Chapter 17 INVESTIGATOR LIABILITY REGINALD J. MONTGOMERY or many private investigators, talking about liability seems as meaningful as watching paint dry. Some dismiss it out of hand; oth- ers brush it off saying, “I have insurance.” Most investigators came from law enforcement, the military, or other governmental back-grounds, where they were protected from personal liability. In the pri-vate sector, however, liability is a real issue—one that can dramatically affect each (and every) private investigator. Under the American legal system, any person can be sued for any reason. Technically, there is a rule against frivolous lawsuits, but it is rarely imposed. In fact, there are numerous examples of neighbors su -ing each other simply out of harassment. When litigation is turned on investigators, however, the tide changes. Private investigators sell themselves and their skills, knowledge, contacts, expertise, and, most importantly, integrity. When that integrity is challenged, it costs time, effort, energy, and money to defend. To protect themselves from liability, many investigators purchase insurance. Is that enough? Actively choosing what services to offer, what clients to work for, and which of each to avoid will have a greater impact on liability than will the presence or absence of insurance. This chapter will explore the risks private investigators face, explore options for managing these risks, and provide recommendations for minimizing exposure. 219 220 Basic Private Investigation WHERE WE ARE TODAY Today private investigators are involved in almost all aspects of legal and business processes. As the profession has grown and matured, professionals have replaced cowboys. The retired part-timers, who once dominated the ranks, are now outnumbered by full-timers. In the early 1900s, only New York licensed investigators. Today, more than forty states recognize that private investigators are a spe-cialized function and require various combinations of licensing, expe-rience, and continuing education. The emergence of standards also brought about the liability for failing to meet those standards. Then the privacy movement emerged, including criminal and civil penalties for invasion of privacy. These factors all combine to put private investigators under increas-ing scrutiny. In the past, issues of trespass or invasion of privacy were rarely mentioned. Many investigators thought nothing of calling bud-dies to get them inside information. In the last ten years, however, the situation has changed dramatically. Investigators began to be prose-cuted, first on the federal level for IRS and Social Security records and then on the state level for records from the Division of Motor Vehicles (DMV). Lately, both federal and state prosecutions have occurred reg-ularly for violations of various privacy laws involving criminal, dri-ving, financial, and other records. THE INVESTIGATIVE BUSINESS Today is a far cry from the days when Pinkerton and Burns could operate above the law in the 1880s. Then readers were entranced by the exploits of Sherlock Holmes. Later, people followed the hard -harging actions of Mike Hammer and the incredible investigative powers of Perry Mason and his team. The Wild West has passed on into history, however. Today, the successors to Pinkerton and Burns are guard services companies. Private security functions are highly regulated and increasingly routine. Successful private investigators proudly display credentials, not pistols; state licenses are seen in offices, not whiskey bottles. Investigator Liability 221 Even as the industry grew and matured, the core needs remained the same. People still lie, cheat, and steal. Every day telephones in pri-vate investigators offices ring with tales of woe, claims abuse, and demands for justice. So what does the ethical private investigator do? Is it possible to serve your clients without bending (and sometimes breaking) the law? Are the rewards worth the risks in today’s environment? What are the risks? These questions can have very different answers depending on the specific services offered and clients served. SERVICE RISKS Investigative services can involve specific inherent risks, and differ-ent services, locations, and specialties can greatly increase or decrease the overall risk level. Services that involve no contact (such as docu-ment retrieval) generally have the lowest level of risk. Next are ser-vices that involve contact with witnesses or other nonconfrontational parties (friendly interviews, locating witnesses, etc.). The highest risks are those that directly involve parties (surveillance, process service, domestic matters) and those that involve sensitive or borderline legal areas, (background investigations, asset searches). These risks are enhanced depending on your specific service. For example, serving a business is generally very low risk, whereas per-sonal service can be very high risk. Covert surveillance in a high crime area is a considerably higher risk than is open surveillance of a load-ing dock. Further, these risks are affected by your actions as well. Carrying a weapon dramatically increases the risk level (although it may seem safer). Providing higher risk services is often part of the job. Some investi-gators, out of a sense of competition or ego, try to push the limits; by climbing trees, crawling under fences, hiding in bayous, all to get the best possible film. When they do, they may break the law and put themselves in potential jeopardy. Others may decide that the risk required for a certain service is no longer worthwhile. The key is in actively making an informed choice. 222 Basic Private Investigation CLIENT RISKS Similarly, some clients are riskier to serve than are others. Investiga-tors who work for corporations are primarily involved in litigation (or potential litigation) matters. Thus, the main risk is being embroiled in the litigation. The more important your role, the more likely you will be named as a party in the case. On the other hand, investigators who work for lawyers or law firms face different risks. The possibility of lit-igation is much lower because an attorney’s agent is often protected, but the risk of violating legal ethics rules (many of which are unknown to investigators) or the risk of not getting paid can increase. Investi-gators who work for private persons run the highest risks, potentially involving themselves in the improper use of information, charges of conspiracy, and the greatly increased risk of nonpayment. Choosing to work or not work for certain types of clients has a great impact on a private investigator’s risk levels. The previous examples may seem either common sense or farfetched, but they are all based on real-life examples from the past five years. It is important to remember that the entire driver’s privacy protection movement began when a private investigator sold driver’s license information to a man who then killed an actress. For a simple $50 case, that private investi-gator has an affect on every other private investigator in the United States. RISK MANAGEMENT TECHNIQUES Because each private investigator’s clients, services, risks, and toler-ances are different, it is impossible to simply spell out a global solu-tion. Rather than guess as to the proper balance, private investigators should utilize risk management techniques to find the best solution for their situation. Risk management is based on a process of controlling risk analytically and its basic formula is RISK=Acceptance, Avoid -ance, Identification, Measurement, Mitigation, and Transfer. Identification Determine what risks you face. These can be caused by location (flood, hurricane, tornado, rebellion, etc.), services (surveillance, re- Investigator Liability 223 possession, background checks, domestic, etc.), and/or clients (corpo-rations, insurance companies, lawyers, individuals). They can also be caused by your background, history, skills, training, and/or experi-ence. The purpose of this exercise is to ensure that you are aware of the specific risks your business experiences. Measurement Next consider the impact of these risks. Some are more likely than others. Some are more devastating than others. Since most private investigators function as small businesses, be sure to address the im-pact of these events on your family. Are there other income sources? What would happen to your business if you were sued, arrested, or described negatively in the press? Acceptance There are some risks that you are willing to accept. For example, there is a possibility that a meteorite might hit you. Although the risk is small, this would certainly be significant. On the other hand, there is really nothing that can be done about it, so the risk must be accept-ed. Similarly, most private investigators are willing to accept the risks of political instability in the country they live in and other types of risks. File in this category any identified risk that you are willing to accept unchanged. Avoidance There are other risks that you are never willing to accept. This may require that you limit your services, location, client types, or other fac-tors. Many investigators will not take a case outside of their comfort zone. That might mean only working local cases, not taking surveil-lance cases, or turning down interviews with non-English speakers. File in this category any risks that you are unwilling to accept. Mitigation For those risks that you are neither willing to accept nor able to avoid, use mitigation techniques to reduce your exposure. For exam-ple, if you take cases from individuals, you can reduce your risk of not ... - tailieumienphi.vn