When the attorney decides to employ the services of a private investigator, the attorney is doing more than paying someone else to obtain information from some source, whether it is a public record or an individual. At the same time the attorney is staking his professional reputation on the services provided by the private investigator.
Identifying a Competent Investigator
The problem for the attorney and his staff is finding a competent professional private investigator who will provide the information needed without creating problems of credibility and competence.
There are numerous factors to be considered in identifying a competent investigator. The reputation of the investigator cannot always be determined by the source from which you obtained his/her name. Using the telephone directory yellow pages as the sole source for investigative support is a dangerous approach. While the telephone directory may provide names of individuals advertising investigative services, additional inquiries must be made. The sole criterion for telephone directory advertising is having a business telephone number listed under the category of private detectives or investigators. The telephone company makes no inquiries as to the validity or competence of the business.
It is important to remember that private investigation associations have a variety of qualifications for membership. In some cases it is nothing more than filling out an application form and having the registration fee. In other cases, such as Intellenet, there is a minimum requirement for ten years of verifiable investigative experience, a thorough and extensive vetting process, and a personal recommendation of an Intellenet member to apply for membership. Membership in a private investigation association, by itself, does not necessarily equate to competence.
Licensing and Insurance Requirements
Another important factor is the private investigator licensing requirements for the various jurisdictions. Some states have stringent requirements to obtain a license as a private investigator. One state has a requirement for a minimum of 3000 hours of experience under the direct supervision of a qualified investigative supervisor before being authorized to operate a private investigation business.
Some states have lesser qualifications and may or may not require continuing education credits to maintain a license. At the other end of the spectrum are those states that have no licensing or minimum standards, such as Colorado, Idaho, Mississippi, Missouri, South Dakota and Wyoming that have no minimum qualifications of any type. This provides a situation where a convicted felon can perform investigative services without having to endure the scrutiny of a background investigation or criminal records check. In Colorado, for example, any business should be registered with the Colorado Secretary of State Office but this obligation is not always enforced. In many subordinate jurisdictions even a business license is not required. Many states do not require any form of professional insurance, either Errors & Omissions, automotive liability, or Workers Compensation. In the event of misconduct or injury, the financial obligations of litigation and awards may be transferred to the individual hiring the investigator.
There was one unfortunate example in Colorado where a former law enforcement officer was employed by an attorney as an investigator. While working for the attorney, the investigator was arrested for a felony offense. The reason the individual was a “former” law enforcement officer was because of suspected criminal activity as a police officer.
Hiring the Investigator
What is a prudent way to hire a competent, trustworthy and professional private investigator? The most important criterion should be actual and verifiable experience of the investigator. What skills should this person have to best meet the needs of your client? An individual with 20 year experience entirely as a traffic accident investigator probably is not a good choice in an arson investigation. It is also known that someone with 20 years experience as a prison corrections officer may not have the necessary investigative skills. The actual skill of the investigator is important and the attorney should not rely on the published skills listed in an advertisement. The attorney should conduct a personal interview with the investigator to assist in determining the actual experience and skill sets of the investigator. Professional references should be obtained and inquiries made of these references.
An area often overlooked is the professional certifications of the individual investigator. An important facet is whether the certification was earned or was it awarded without examination of abilities. Professional Certified Investigator (PCI) of the American Society for Industrial Security (ASIS) is an internationally recognized certification based on a minimum experience level, an initial investigative content examination, and periodic recertification through a continuing education requirement. ASIS also awards a Certified Protection Professional (CPP) certification with similar qualification in the security consulting arena. Certified Fraud Examiner (CFE) awarded by the Association of Certified Fraud Examiners is a similar certification with an emphasis on the investigation of financial fraud. These certification require continuing education credits.
Another criterion to be identified is the ability of the investigator to conduct the necessary activities. Will the investigator personally perform your investigative requirements or will they be sub-contracted to another individual? This can create a potential problem: What are the qualifications of the sub-contractor? To comply with Internal Revenue Service requirements to be a contractor or sub-contractor, the attorney or contractor cannot direct the sub-contractor to conduct the investigation in a particularly defined manner. The task is given to the contractor and the contractor determines how the task is to be accomplished.
When interviewing a potential investigator, it is prudent to determine the extent of investigative resources available to the investigator. The question is “What are the qualifications” of the individual from whom the investigator may obtain investigative assistance. This is especially important if portions of the investigation will be conducted in other states or countries.
International Investigations
Conducting investigations in an international environment face problems not normally encountered in the United States.
Among the many issues is the financial cost. It is unrealistic to expect that international hourly rates will be similar to, or lower than, rates within the United States. The recent decline of the dollar against the Euro and other currencies has dramatically increased the costs of an investigation. The current average minimum hourly rate for international investigations is in the $150.00 to $200.00 range.
Another issue is the manner in which international records are maintained and the bureaucratic road blocks to speedy compliance with requests. In the United States, the vast majority of records and documents are accessible via computer with the generation of immediate results. It should be remembered that more than 90% of the world works by old-fashioned investigative standards and practices and has draconian secrecy laws for all investigations, including asset searches and background checks. In some instances, the bureaucracy requires that only a limited number of individuals have access to records. This could mean an extended period of response time when the designated person is unavailable to process the request.
Another issue in the international arena is the additional travel time required because of the distance involved in getting to records storage at distant locations. The poor quality transportation system in some countries dramatically increases the travel time required to complete a project. In non-English speaking countries there is also the cost and time required for translations. The actual and incidental bureaucratic costs of obtaining records on a timely basis must also be considered. In some foreign venues, non-native requests for information are not given the same priority as requests from indigenous personnel.
In addition, corruption can be a factor in some developing countries, thus has to be included in any pricing arrangements. When a client or fellow investigator is quoted a fee from an overseas provider estimated to be in the $150 to $200 per hour range, the potential customer often times decides to get a quote from several other local providers in the country concerned. Fair enough. Sometimes local providers will be in a better position to quote lower than an international provider, usually based on lower overhead; but sometimes based on issues of corruption. Transparency International ranks many countries in the developing world much higher on the list of corrupt countries than those in the Western World. And unfortunately, that occasionally trickles down into our industry. Some local providers, though not necessarily the majority, may discard your legal papers in a process service, and prepare a fraudulent affidavit of service. Or they may engage in “ghost writing” negative results, never having conducted the required leads in the first place; taking your money for a little literary effort.
How to minimize the costs and time delay for completion of international requests is contingent on the preparatory actions of the requesting investigator. It is incumbent upon the requestor to advise the client of the difficulties encountered in international jurisdictions. Of primary consideration should be the explanation that foreign privacy and secrecy laws are considerably more restrictive than United States laws. Records that are commonly available in the United States may not be available in other countries. Secondarily, the client needs to be advised that it normally requires additional time to complete an international investigation because of the unique political and judicial situation in each country.
There are certain steps that the requesting investigator can accomplish to facilitate the investigation.
1. Consider the international investigator as an integral part of your investigative team by taking the investigator into your complete confidence and providing ALL pertinent details surrounding your client’s request. This could require the requesting investigator to obtain the client’s consent and having the international investigator execute a non-disclosure or non-compete agreement if necessary.
2. The approach to information disclosure should be to “tell everything, as if you were handing over the case to a new investigator.” This approach allows the international investigator who is uniquely acquainted with the local culture and bureaucratic structure to analyze the request and prepare an investigative plan in accordance with the laws of the foreign area. It is essential to solicit advice from the international investigator who may be able to provide direction to an area not known to the requestor.
3. The agreement with the client should document the explanation of problems encountered in other countries, such as record keeping systems, translation problems, and travel. The agreement should also specify the approximate turn-around-time, costs and budget limits, reporting standards, i.e., need for official documents and signed statements, and translation responsibilities.
4. When considering time constraints, it is important to coordinate with the foreign investigator to arrive at a reasonable and manageable time line.
Appropriate prior planning will prevent misunderstandings and unanticipated results.
Timely Employment of the Investigator
A problem can arise for the attorney and the investigator due to the timeliness of employment of the investigator. The investigator should be employed as soon after the incident as possible and prior to the filing of a complaint with the court. There are basically two reasons for this employment timeline. First, witness perceptions may changed based on public statements of law enforcement officers during their investigation. Fact retention may also be hindered through aging and the desire to remove the offensive facts from a person’s memory.
Secondly, many times the investigator can provide additional investigative leads or information to the attorney based on the investigator’s experience. It’s basically that two heads are better than one because they see a situation from different angles.
Costs and Fee Schedules
A major concern anytime a private investigator is retained is the hourly cost of investigative activity. Again, there is a cliché that states “you get what you pay for.” The more experience and expertise that an individual has in a specific area or specialty will impact the hourly cost. The average cost for a highly qualified investigator in the United States is $150 per hour on average. The cost for an investigator in the international environment is approximately $200 per hour on average. Mileage costs are usually equal to the IRS allowance and other expenses are at actual costs. Per diem lodging and meal reimbursement should be equal to the General Services Administration allowances for the area.
The employment of a private investigator should be subject to a written fee schedule or contract that outlines in detail the expectations and responsibilities of each party, including fees, expenses, hourly rates, time requirements and report criteria as a minimum.
One area where a private investigator is particularly valuable is the investigation of internal incidents within a corporate structure. The use of in-house personnel to conduct an internal investigation will always be subject to claims of prejudice or self-serving interests. The private investigator with no connection to the corporate entity can easily refute such claims.
Summary
Obtaining quality professional investigative services is vital to a successful conclusion to your case. To obtain a proper return on your investment in investigative services, there are several issues for consideration:
1. Make sure the investigator is reputable and experienced in the specifics of your inquiry.
2. Determine the scope of the inquiry and the fee schedule at the outset.
3. Ensure that the investigator is available to testify in court if required.
4. Ensure that the investigator has no conflict of interest in your investigation.