In the worst cases, sanctions can include prohibiting the use of improperly-obtained evidence at trial, or even terminating sanctions. Failure to properly instruct an investigator may lead to unethical behavior, which may result sanctions. Instructions must include what can or should be done, what is to be avoided, and whether and who the investigator can employ to perform the assigned tasks. The rules seek to ensure that an attorney does not circumvent ethical standards by delegating to an investigator. ![]() ![]() The Model Rules go so far as to make the attorney liable for acts of the investigator that violate the Model Rules, if the attorney knows of or ratifies those acts. Both ABA Model Rule 5-3 and California Rule of Professional Conduct 3-110 require an attorney to adequately supervise non-attorney investigators to ensure compliance with ethical standards for attorneys. This article identifies five pitfalls associated with informal discovery, whether conducted by lawyers directly or through private investigators.įAILING TO PROPERLY INSTRUCT YOUR INVESTIGATORĪ frequent mistake made by attorneys is to fail to clearly instruct the investigator on the ethical and legal rules governing their conduct. ![]() An attorney employing self-help, however, must be careful to stay within ethical and legal boundaries. Informal fact gathering can help tip the balance in your client’s favor. Written discovery is often insufficient to develop the best record for trial.
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