Prior Consultation With the Opposing Spouse
You are a licensed investigator in Las Cruces. Maria hires you for a custody case. She wants you to document her ex-husband's alcohol use and to find his new address, which she says he hides. She pays a $2,500 retainer. During intake you recognize the ex-husband's name: eight weeks ago, his attorney consulted you for 75 minutes about the same custody dispute. You took no further action for him and did not sign a contract, but he disclosed that he has a protective order address, a treatment schedule, and a plan to seek sole custody. You made notes. Maria now says, 'Use whatever you know from before-especially the address-and don't tell him you talked to me.' She also asks you to befriend him at his AA meeting to get information.
1. Identify the conflict and confidentiality issues raised by the prior consultation.
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The prior 75-minute consultation created a duty of confidentiality and a conflict of interest. Even without a signed contract, the ex-husband's attorney disclosed protected address information, treatment schedule, and litigation strategy in expectation of confidentiality. You cannot use that information for Maria or disclose it to her. The matters are substantially related and adverse. Under the rules, you must decline unless both sides give informed written consent and you can avoid any use of confidential information. Here, the protected address and strategy are central, so consent is unlikely to cure the conflict. Do not open the old file; do not tell Maria what was said.
2. How should you handle the retainer, the prior notes, and communication with Maria?
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Return the $2,500 retainer or refund the unearned portion promptly, with a written accounting. Send a decline letter that does not reveal confidential information: state only that a conflict exists and you cannot represent her. Do not identify the prior client or the subject matter beyond what Maria already knows. Preserve the prior consultation notes in a secure, access-restricted file; do not merge them with Maria's file. Document the conflict check, the date you recognized it, and your actions. Offer a referral to another licensed investigator if appropriate. If Maria insists on using the prior information, reiterate the refusal in writing.
3. Evaluate Maria's request that you befriend the ex-husband at his AA meeting.
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Going to the ex-husband's AA meeting to befriend him is not permissible. It is a deceptive intrusion into a protected recovery space, may violate the group's anonymity norms, and could create safety risk. It also uses a false persona to obtain sensitive health or sobriety information. Even if the meeting is in a public building, the setting creates a strong expectation of privacy and trust. Do not do it. If Maria needs evidence of alcohol use, use lawful methods: public observations, documented incidents, public social media posts, witness interviews with disclosure, or a court-authorized discovery request through her attorney. Document her request and your refusal.