San Francisco area divorce attorney Mary Nolan was sentenced last week to two years in federal prison on multiple felony charges, including illegal wiretapping and tax evasion. Her crimes included hiring private investigator Christopher Butler to use dirty tactics to gather incriminating evidence against her clients’ husbands.
Nolan and Butler’s most sensational scheme was that of the “dirty DUI.” Butler would hire attractive women to meet the husbands of Nolan’s clients at a bar and lure them into having a few drinks. Butler, an ex-cop, would then tip off his friends in law enforcement as the husbands left the bar, and the cops would catch the husbands driving under the influence. Butler is currently serving an eight-year prison term for his illegal investigative tactics, along with robbery, conspiracy, and extortion.
We speak to lawyers all the time who tell us that they don’t mind if their investigators break the rules, so long as they don’t know about it. Well lawyers, I hate to break it to you, but you should mind. ABA Model Rule of Professional Conduct 5.3 requires lawyers to “make reasonable efforts to ensure” that people you have hired to act on your behalf conduct themselves according to the “professional obligations of the lawyer.” Comments 2 and 3 of the Rule specifically refer to investigators and state that the supervising attorney must instruct their investigators on ethics requirements and that the attorney is ultimately responsible for the investigators’ work. Finally, Rule 8.4(a) prohibits lawyers from using a non-lawyer to do something the lawyer is proscribed from doing under the Rules of Professional Conduct.
The moral of the story is that turning a blind eye will not insulate you from responsibility if your investigator steps over the line. Criminal liability is rare, but using unethical investigation tactics can lead to important evidence being excluded from court or other serious sanctions that will hurt your clients and your reputation.
We make every effort to stay apprised of the latest developments in ethics rules, and we are frequently called upon to teach continuing education courses on ethics in investigations to attorneys and investigators. We are firm believers that with a little creativity and persistence, you can get the information you need without breaking the rules.