Contract Terms and Scope Creep
You are a private investigator hired by a law firm to locate a witness, John, in a civil lawsuit. The engagement letter states: 'Investigator will locate and provide a current address and phone number for John Doe. Fee: $500 flat, plus expenses. Investigator will not contact the witness directly.' You locate John's address and phone number within two days and provide them to the law firm. The law firm then asks you to serve John with a subpoena, which is outside the scope of the original agreement. You agree to do it for an additional $100. You serve the subpoena and provide an affidavit of service. Later, the law firm asks you to interview John and obtain a written statement. You agree to do so for $300. During the interview, John makes statements that are damaging to the law firm's client. The law firm refuses to pay the additional $400, claiming that the original $500 flat fee covered all services. You argue that the additional services were outside the scope and separately agreed upon. The law firm also claims that you violated the agreement by contacting the witness directly, despite the prohibition.
1. Analyze the contract issues. Was there a valid contract for the additional services? What are the consequences of the law firm's refusal to pay?
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The original contract was for locating the witness and providing contact information, with a flat fee of $500 and a prohibition on contacting the witness. When the law firm asked you to serve the subpoena, that was a new request outside the scope. You agreed to do it for $100, which constitutes a separate oral contract or a modification of the original contract. For a modification to be valid, there must be mutual assent and consideration. The $100 is consideration for the additional service. Similarly, the interview for $300 was another separate agreement. The law firm's refusal to pay the additional $400 is a breach of those agreements. You are entitled to payment for services rendered. However, the law firm claims you violated the agreement by contacting the witness directly. If the original contract prohibited any contact with the witness, then your interview may have breached that term. However, the law firm itself requested the interview, which could be seen as a waiver of that prohibition or a new agreement permitting contact. The law firm cannot both request the interview and then claim it was prohibited. Therefore, the law firm's refusal to pay is likely unjustified. You may have a claim for breach of contract. You should document all communications and agreements. If the law firm persists, you could sue for the unpaid fees. However, consider the cost of litigation versus the amount owed.
2. What ethical issues arise from the law firm's request to interview the witness and your agreement to do so? Discuss your obligations under Alabama law and the Alabama Private Investigation Board regulations.
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The ethical issues include whether contacting the witness directly is permissible. The original contract prohibited contact, but the law firm later requested it. As a private investigator, you must follow the client's lawful instructions. However, you must also ensure that your actions do not violate any laws or ethical rules. Interviewing a witness is generally permissible, but you must not misrepresent yourself or use deceptive tactics to obtain information. You should identify yourself as an investigator and the party you represent. You must not intimidate or harass the witness. The law firm's request to obtain a written statement may raise issues if the witness is represented by counsel. If John is represented by an attorney, you should not contact him directly without going through his attorney, as this could violate legal ethics rules (though those rules apply to attorneys, not investigators, but you could be aiding an ethical violation). The Alabama Private Investigation Board regulations require investigators to be honest and truthful and to comply with all laws. You should document the law firm's request and your actions. If you believe the interview would be unethical or illegal, you should refuse. In this case, since the law firm requested the interview, you may proceed, but you should be cautious about any misrepresentations. You should also ensure that your report is accurate and does not omit exculpatory information.