Bar News - March 19, 2010
The Value of a Professional Investigation
By: John H. Healy
A past article at ABAnet.org. written by Lisa Stansky noted: "…. Investigators often are more successful than lawyers at gathering information from people……"
The New Hampshire Supreme Court, in Brian Mathews V. Cindy Mathews also recognized the value of a professional investigation, here, in a child custody matter.
"The evidence offered regarding the plaintiff’s failure to properly supervise and attend to the children was overwhelming…….a private investigator testified that when he observed the plaintiff on ten different evenings, the plaintiff left the children alone overnight on six occasions while she visited a male friend……Furthermore, the investigator’s report indicated that following the first day of the hearing, the plaintiff continued her pattern of leaving the children alone overnight."
You may have your own investigator on staff or you may use a licensed investigator when the need arises. HB651 recently passed the House and Senate and creates a new regulatory scheme for the profession. It was authored by this writer and several members of the New Hampshire League of Investigators, Inc. (www.nhli.net) and re written by the Dept of Safety.
It becomes law on Jan. 1, 2011.
This bill adds certain exclusions from the regulation of private investigative agencies, security guard agencies, and bail enforcement agencies; replaces the term detective agencies with private investigative agencies; and requires the Commissioner of Safety to regulate private investigative agencies, security guard agencies, and bail enforcement agencies.
Our goal was to modernize the regulatory scheme, address the needs of investigators, attorneys, The Coalition Against Domestic and Sexual Violence and the general public.
Exemptions from licensing are more clearly spelled out. Among them are:
"X. Persons serving subpoenas or summonses for attorneys as provided by statute.
XII. Attorneys, and employees of their law firms acting as their agents, exercising legal rights to investigate on behalf of their clients."
The law creates an advisory board to review complaints and licensing issues. It also defines, for the first time, "doing business" in the State as an investigator:
"Doing business means advertising in New Hampshire or soliciting work, clients, or customers in or from New Hampshire."
It also addresses the issue of an investigator in this state who must visit another state to complete an assignment that began here.
"This shall not preclude a licensee under this chapter from pursuing investigation of matters arising in this state in, another state, or political subdivision except as provided by the law of the other state or political subdivision."
The law also broadens the acceptable experience that qualifies an applicant to obtain a license.
It changes the current law regarding the reporting of crimes by investigators:
106-F:13-a Obligation to Report Certain Criminal Violations.
I. All felonies observed or revealed by or to persons licensed under this chapter shall be immediately reported to the New Hampshire state police the closest law enforcement agency having jurisdiction, or to the attorney general’s office.
II. A licensee who reports criminal activity to state or local police or county sheriff shall be immune from civil liability for making a report or information available to law enforcement provided it is made in good faith and with reasonable belief in its veracity and is in compliance with this chapter.
A clause which would have included exempting (from mandatory reporting) any information learned from an attorney’s client during the course of an investigation was objected to by the NH Chief’s of Police and removed by the Committee.
Investigators feel it is still covered under the Work Product doctrine, but we wanted it written into our licensing law. We hope to amend the law and have this clause re-inserted.
We were successful in adding:
"II. No person licensed under this chapter shall be required to reveal other than by judicial order information on the subject, nature, or substance of an investigation or work product to any other person if by doing this he or she would violate the rights and interests of a person engaging the services of the licensee, except to the limited extent that may be needed to dispel the suspicions of a law enforcement officer investigating a report of loitering, prowling, or other suspicious activity pursuant to RSA 644:6, and except to the commissioner of safety or authorized agent when required in an investigation of improper or illegal conduct by the licensee.
We worked with the Domestic Violence Coalition to craft the following:
Except as permitted under RSA 173-B:5-a and RSA 633:3-a, III(d), no licensee or license holder shall engage in activity or stand in the stead or as agent or representative of a person or legal entity that is judicially or statutorily prohibited from making inquiry, having contact, or otherwise legally barred from the activity requested of or performed by the licensee or license holder.
A representation made by the engaging person or legal entity, taken in good faith, that no such prohibition exists shall be an affirmative defense regarding a violation of this section. A licensee who becomes aware of a prohibition shall immediately desist from further prohibited activity; shall not provide information gained through the prohibited activity to another person; and if such information has been provided, shall have a duty to notify any aggrieved person.
Read the full text of the bill.
How does one locate, and evaluate, a competent, and experienced, investigator? What are the criteria? A telephone book ad or a web site is no guarantee that the person is licensed, or has the qualifications that meet your needs.
Ask a professional colleague for a referral. Ask questions, request documentation, and references. Ask for, and contact, professional references. The investigator should be able to furnish you with detailed curriculum vitae, and a copy of his, or her, contract for services.
Another consideration is his/her commitment to excellence, ongoing training, and professional standards. The Hallmark of the professional investigator is his/her membership in the New Hampshire League of Investigators. The NHLI is the only professional association of investigators in New Hampshire.
New members go through a screening process. Members are governed by its constitution and by-laws, and must abide by a strict Code of Professional Ethics. NHLI members keep at the top of their profession by availing themselves of the numerous training seminars, sponsored by the League, and are kept informed by its publication, The PROBE. Please visit the League’s website at http://www.nhli.net where you can learn more about the association or find an investigator.
John M. Healy is a professional investigator and Past President of The New Hampshire League of Investigators, Inc. You may contact him at Litigation Intelligence Services, 76 Pleasant Pond Road, Warner, NH 03278 or 603-746-4994.