The No-Contact Letter and the Threatened Clerk
An insurance defense firm retains an investigator in a slip-and-fall claim. The claimant has counsel, who has sent the firm a letter stating: 'Do not contact my client.' The adjuster asks the investigator to 'drop by' the claimant's home anyway, noting that the investigator is not a lawyer. Separately, the firm wants a recorded statement from the 19-year-old stock clerk who mopped the aisle. The store manager calls the interview voluntary, but HR adds: 'If he won't sign today, we'll have to reconsider his hours.' The investigator's state allows recording with one party's consent; the clerk's state requires all-party consent, and he will be interviewed by video call from his home state. The clerk is named individually as a defendant.
1. How should the investigator handle the adjuster's instruction to visit the represented claimant?
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Decline, and put the refusal in writing.
- The no-contact rule is written for attorneys, but it reaches the attorney's agents. An investigator working at the direction of defense counsel for the purpose of gathering evidence in the matter is an agent; courts have treated contact by an agent as contact by the attorney. The consequences run against the client, not just the investigator: disqualification, sanctions, exclusion of whatever was learned, and a ruined statement.
- 'Drop by the home' is the worst version of this - unannounced, in person, at a residence, after explicit written notice. Even in a jurisdiction with a narrow rule, a surprise approach to a represented party invites a bar complaint and a motion.
- A chance encounter is not a loophole. If the claimant initiates contact, the investigator should listen without prompting and end the conversation once the claimant mentions counsel.
- Response to the adjuster: state in writing that the instruction conflicts with the claimant's representation and that you will not make contact unless counsel for the claimant gives written clearance or the claimant's counsel withdraws. Offer lawful alternatives: public surveillance where appropriate, subpoenaed records, and deposition through counsel.
- If the client insists after the written refusal, consider whether to continue the engagement. That is a business decision, but it is also a licensing and reputational one.
2. Analyze the clerk's recorded statement: recording law, voluntariness, and conflict of interest. What must the investigator do before, during, and after?
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Three separate problems, all of which can sink the statement.
Recording. He will physically be in an all-party-consent state. Where he is matters most, and where the recording party is may also matter depending on the jurisdiction. Do not audit the rules from memory: confirm the requirement for both states, then obtain his on-record written and spoken consent regardless. A video call does not make it a one-party recording.
Voluntariness. HR's reference to 'reconsidering his hours' is a threat of adverse employment action. If the investigator conveys it, implies it, or lets it hang in the room, the statement becomes a coerced statement and the investigator becomes the instrument of the coercion. Required steps:
- Get HR's position in writing and tell them plainly that no threat will be communicated.
- Open with a scripted preamble: he may decline, may leave at any time, may have a representative present, and no employment consequence follows from his choice. Document that you said it, on camera.
- Make clear the investigator represents neither him nor the store.
Conflict. He is a named defendant and his interests diverge from the store's. The store's counsel does not represent him. Without giving legal advice, tell him that he may wish to consult his own attorney before answering, and stop if he asks for one. His age and junior position create a power imbalance that a court will notice.
After. Preserve the unedited recording, log it, write a memo recording the HR statement and who said it, and report it as a fact. Do not characterize the statement as 'voluntary' in the report unless you can describe exactly what you said to make it so.
3. If the clerk declines to be recorded but will talk, what should the investigator do, and how should this be documented in the case file?
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Take the substance without the recording - but only in a form that survives challenge.
- Ask him to give a written statement in his own hand, dated and signed, and note the circumstances at the top.
- If he will not write either, take detailed contemporaneous notes and, within the hour, dictate or write a memorandum to file: date, time, platform, who was present, the exact consent language used, and the questions and answers as close to verbatim as possible.
- Do not record covertly after he declines. In an all-party-consent state, that converts a witness problem into a potential criminal one and destroys credibility.
- Document the reason for no recording in the file, not just the absence of one - a future reader must be able to see it was his choice, not an oversight.
- Flag to counsel that the statement's weight is reduced and that a later deposition under oath is the better product.
- Keep the file's integrity: recording, notes, consent script, and the HR memo together, in one place, with a log entry for each.