Ethics, Professional Conduct, and Privacy Obligations
Competing duties
An investigator owes duties to the client, to the subject of the investigation, and to the tribunal. Confidentiality is broad but not absolute: it yields to subpoena, court order, and the duty to correct material false testimony. Conflict checks come first - declining work adverse to a current client, or where a prior matter created access to confidential information, is expected practice.
Privacy law you must actually know
Several statutes limit how information may be obtained, not merely whether it is public. The Driver's Privacy Protection Act restricts motor vehicle record use to permitted purposes. The Gramm-Leach-Bliley Act restricts pretexting for financial records. Wiretap and eavesdropping statutes turn on consent: some jurisdictions require only one party's consent to record a conversation, others require all parties. Stored communications and computer fraud statutes limit access to accounts and devices, even with a shared password. Impersonating law enforcement is a crime nearly everywhere.
Traps
- Believing that publicly available data is automatically fair game for any use; aggregation and purpose still matter.
- Overlooking that one-party consent rules change when the investigator crosses a state line.
- Treating a client's HIPAA obligations as irrelevant; contractual flow-down terms often bind the investigator.
- Using deception that crosses from lawful pretext into impersonation of a government official.
Rule of thumb
Apply the front-page test plus a paper trail: if you would be uncomfortable explaining the method in open court, don't use it. Document the lawful basis for each sensitive request - the permitted purpose, the consent, or the court order - at the time you make it.