Lawyers, Investigators and the Law in NH
Lawyers are trained to litigate and negotiate. Investigators are trained to probe.
An article by Lisa Stansky noted: “… Investigators often are more successful than lawyers at gathering information from people…”
The New Hampshire Supreme Court also recognized the value of a specialized investigation 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.”
There are a few laws that directly apply to investigators. Most, but not all, investigators are aware of these laws, the attorney should be too.
RSA 106-f: 4
Any investigation, for a fee, requires a license in New Hampshire. The statute governing these activities is RSA 106-f: 4. It is the activity that is regulated, not the title of the provider. There are various entities performing various investigations in New Hampshire, without license. The license method, among other qualifications, that a $50,000.00 bond is on file with the State. No license = no bond= no public protection. A license is required to perform the below sets:
“business of collecting for a fee, hire or reward information on the identity, conduct, movements, whereabouts, affiliations, transactions, reputation or character of any person, or otherwise doing investigative work for a private instead of a public interest.” 106-F: 4 II
The New Hampshire Supreme Court stated that investigators can be held liable for the actions of their clients, already if the action is a crime.
“consequently, if a private investigator or information broker’s (hereinafter “investigator” collectively) disclosure of information to a client creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed, the investigator owes a duty to exercise reasonable care not to subject the third person to an unreasonable risk of harm. In calculating whether the risk of criminal misconduct is foreseeable to an investigator, we examine two risks of information disclosure indicated by this case: stalking and identity theft.”
TELEPHONE TOLL RECORDS
Recently an out-of-State investigator was ordered to relinquish over $110, 00.00 in profit she made after obtaining telephone toll records by pretext. For a longtime this was a gray area. Recent Federal Legislation makes this illegal, but there are nevertheless sets offering to do it, they just leave out the pretext part in their advertising.
SKIPTRACING AND RESEARCH
The GLB (Gramm-Leach-Bliley Act) is one law that governs activities in accessing certain data supplies which are used in doing backgrounds or skip tracing for law firms. A person must have a permissible purpose under the GBL to access data, like credit headers. It cannot be resold to the public.
The GLB also restricts pretexting to acquire financial information, but it does leave room for work what involves recovering funds from deadbeat dads.
Accessing DMV information is harder here than in other States. Federal Law, the Driver Privacy Protection Act, allows for access “in anticipation of litigation.” Sadly we did not follow that and RSA 260:14 is far more restrictive. Not only do you need a docket number but a letter of explanation describing what you need and why you need it. Intrusive, but it is the law.
SURVEILLANCE V. STALKING
Clandestine Surveillance is allowed under RSA 106-f. observe the statutory term “clandestine.” Theoretically, stalking should not be an issue, but it became one in the Miller V. Blackden decision. Surveillance is an exception to the stalking law, if done properly. It is not stalking provided the activity is “necessary to accomplish a authentic purpose independent of making contact with the targeted person.” (633: 3-a)
Clearly a clandestine surveillance is protected here and this is what the Legislature intended. It is an ‘in your confront’, not so clandestine, surveillance that is extremely under certain circumstances. The burden is on the investigator to prove he or she has a lawful purpose. The attorney must be aware of this when assigning surveillance to an investigator.
The New Hampshire League of Investigators, Inc. (WWW.NHLI.NET) is working with the Coalition Against Domestic and Sexual Violence to make sure this is adhered to and training becomes a part of the new licensing scheme for investigators.
An investigator can contact a victim of domestic violence, if working for an attorney, if the investigator:
1. Identifies himself or herself as a representative of the defendant.
2. Acknowledges the existence of the protective order.
3. Informs the plaintiff that he or she has no obligation to speak.
4. Terminates contact with the plaintiff if the plaintiff expresses an unwillingness to talk.
5. Ensures that any personal contact with the plaintiff occurs outside of the defendant’s presence, unless the court has alternation the protective order to permit such contact.” (633: 3-a).
Make sure your investigator is aware of this.
CONSUMER PROTECTION LAWS
This was applied to investigators in the Remsburg decision, specifically in the area of “any unfair or misleading act or practice in the conduct of any trade or commerce within this state.” (RSA 358-a)
consequently, we conclude that an investigator who obtains a person’s work address by method of pretextual phone calling, and then sells the information, may be liable for damages under RSA chapter 358-A to the person deceived.
Investigators can serve the public and nevertheless continue people’s privacy when asked to locate former friends, army buddies, roommates and estranged family members. After obtaining the identifiers from the client, the investigator tries to locate the subject. If successful, he or she contacts that subject and asks they contact the client, stating the reason, and not revealing the person’s whereabouts to the client.
This is a simple issue. New Hampshire is a two-party state, consequently no conversation in person or by phone can be recorded without consent of all parties. A verbal waiver should be a part of every taped interview an investigator does for you.
ABANDONDED character SEARCHES
This is a form of data mining, done with abandoned character, also knows as Dumpster Diving. As with many other things, New Hampshire treats this differently. In State V Goss, the Supreme Court addressed the intent of the owner in protecting his trash from a search, citing that seizing it without a warrant was a Constitutional violation.
While this does not affect licensed investigators, directly, it does, indirectly, if the concept were carried over to the private sector. While trash may be off the character and abandoned, it is the intent of the owner it be destroyed, not data mined.
Pre-employment screening is addressed here. The investigator must have a waiver from the employee, on hand and all inquiries must follow FCRA guidelines. These guidelines set other standards and procedures for the employer to follow with regarding to negative actions and other employment related decisions.
It looks like any tow service can retrieve a means for a bank. (RSA 367-A: 7 VIII)
(4) whereby a seller or holder of the contract, or other person acting on his behalf, is empowered to go into the buyer’s premises unlawfully, or to commit any breach of the peace in the repossession of a motor means; (5) whereby the buyer waives any right of action against the seller or holder of the contract, or other person acting on his behalf, for any illegal act committed in the collection of payments under the contract or in the repossession of the motor means;
They do have to notify the police within hours after doing it. (RSA262: 3-A) However to do an investigation to find the collateral, if it is not at the location specificed, does require a license. RSA 106-F: 4
Ethical conduct is not addressed in the current licensing scheme, consequently no negative action can be taken for unethical/unprofessional conduct. The New Hampshire League of Investigators, Inc. (WWW.NHLI.NET) is trying to change that with HB 776 which will add testing to acquire a license, compulsory Continuing Education to revive it, and a definition of ethical conduct to give the Regulatory Board and Agency (Department of Safety) some tools for enforcement; better public protection by higher standards.
REASON FOR THE ARTICLE
In order for the attorney/investigator relationship to prosper both parties need to be aware of the laws governing the probe activity. I have been an investigator for many years and a member of The New Hampshire League of Investigators, Inc during that time. I am its Past President. Our members are kept aware of these laws, by way of our publication, our website, and our training. Sadly I nevertheless run into non-members, licensed investigators, who ask questions like: “the GLB… what’s that?” The Miller v Blackden decision is another scenario that can be avoided by knowing the law.
FIND AN INVESTIGATOR
In addition to the educational opportunities obtainable, members of The New Hampshire League of Investigators, Inc agree, in writing, to to pay attention to its Code of specialized conduct. Membership in the Association is the Hallmark of the specialized Investigator in New Hampshire.