Bar News - January 14, 2011
Attorney Beware: New Regulations for Private Investigators
By: John M. Healy
New Hampshire has new regulations for investigators and every attorney should be familiar with them.
You may have your own investigator on staff or you may use a licensed investigator when the need arises. In either case, HB651, recently signed by the governor, creates new regulations for the profession. The original version of the bill was written by this author and several members of the NH League of Investigators, Inc. (NHLI) and was re-written by the Dept of Safety.
It becomes law on Jan. 1, 2011 and adds certain exclusions from the regulation of private investigative agencies (formerly "detective agencies"), security guard agencies, and bail enforcement agencies. It also requires the commissioner of safety to regulate all of these agencies.
The goal of the bill’s authors 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 in the new bill. Exempt 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.
The new law 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 and changes the current law regarding the reporting of crimes by investigators. RSA 106-F:13-a Obligation to Report Certain Criminal Violations states:
I. All felonies observed or revealed by or to persons licensed under this chapter shall be immediately reported to the NH state police, the closest law enforcement agency having jurisdiction, or to the attorney general’s office.
III. A licensee who is employed or contracted and supervised by an attorney shall not be required to report any of his or her work product which would violate the privilege of confidentiality between the attorney and his or her client.
Investigators feel the point is still covered under the Work Product doctrine, but authors of the bill wanted it written into the licensing law:
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.
Working with the Domestic Violence Coalition, the authors also crafted the following:
I. 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.
Finding an Investigator
An article at ABAnet.org written by Lisa Stansky notes: "…. Investigators often are more successful than lawyers at gathering information from people…."
The NH 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 [this author] 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."
How does one locate and evaluate a competent, experienced investigator? What are the criteria? A telephone book ad or a website 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 a detailed curriculum vitae, and a copy of his/her contract for services. Call the State Police Permits and Licensing Unit: (603) 223-3873 for verification.
Also consider the investigator’s commitment to excellence, his/her on-going training and professional standards. The hallmark of the professional investigator is membership in the NHLI. The League, in existence for over twenty years, is the only professional association of investigators in New Hampshire.
New members go through a screening process and all members are governed by the 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 www.nhli.net to learn more about the association or to find an investigator.
John M. Healy, Litigation Intelligence Services, is a past president of both the NH League of Investigators, Inc. and the New England Council of State Investigator Associations. He became a licensed investigator after retiring from the NH State Police and has authored many articles on investigations for law enforcement agencies and the legal community.