The Custody Case and the 'Creative' Retainer
A family-law attorney hires your agency to investigate the opposing party in a custody case. At the intake meeting, you learn that the opposing party is a patient at the counseling practice where your spouse works as a billing manager. The attorney says, 'Your spouse can check whether she's in treatment for substance abuse-that would win the case.' The attorney also asks you to call the opposing party's pharmacy, pose as a nurse from her doctor's office, and obtain a list of her prescriptions. The retainer is $6,000, and the attorney promises more work if you 'get creative.' You have not signed a contract yet.
1. Identify the conflicts of interest and ethical issues in this engagement.
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There is a direct conflict because your spouse works at the counseling practice and may have access to the opposing party's protected health information. Even if your spouse never discusses patients, the appearance of access and divided loyalty is serious. Using the spouse to check treatment records would be an improper use of a family relationship and a breach of patient confidentiality. The pharmacy pretext raises honesty and privacy problems: impersonating a health care provider to obtain prescription records is deceptive and may violate HIPAA, state health-privacy law, and the Private Detective Act's standards of conduct. The attorney's promise of future work in exchange for 'creative' methods is pressure to cross ethical lines.
2. How should you respond to the spouse/records request and the pharmacy pretext?
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Decline both clearly. Do not ask your spouse to look up any patient, and do not accept any information about the opposing party that your spouse obtains through employment. For the pharmacy, do not call and impersonate a nurse or doctor. Explain to the attorney that lawful alternatives exist: subpoenas, signed authorizations, court orders, public records, witness interviews, and lawful surveillance. If the attorney insists on the pretext or the spouse's access, decline the engagement and document why. A $6,000 retainer is not worth a licensing complaint or civil liability.
3. How should you document and communicate your decision?
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Before signing, send the attorney a written conflict disclosure and a statement of the methods you will and will not use. Identify the spouse's employment as a conflict, state that you will not use it, and describe the lawful alternatives. Keep the tone factual and professional. If you decline the engagement, say so in writing and do not accept the retainer. If you proceed after the conflict is addressed, document the screening measures and the attorney's written acknowledgment. This protects the agency, preserves the attorney's ability to meet professional obligations, and creates a record if the client later complains.