Christensen Case a 'Wake-Up' Call for Lawyers on Use of Private Eyes

Amanda Bronstad

The National Law Journal

Regardless of what happens in the criminal case against Terry Christensen, the Los Angeles lawyer accused of paying celebrity sleuth Anthony Pellicano to illegally wiretap some of his opponents, many lawyers are thinking twice about the way they work with private investigators.

Christensen, managing partner at Christensen, Glaser, Fink, Jacobs, Weil & Shapiro, and Pellicano, who was recently convicted on dozens of related claims, are scheduled to go to trial on July 16 on wiretapping and conspiracy to commit wiretapping charges.

Prosecutors, armed with dozens of recordings of conversations between Pellicano and Christensen, intend to prove that Christensen paid more than $100,000 to Pellicano to illegally wiretap Lisa Bonder Kerkorian, the ex-wife of Christensen's client, billionaire investor Kirk Kerkorian, in a child support case. If convicted, Christensen could face up to 10 years in prison. U.S. v. Pellicano, No. 2:2005-cr-01046 (C.D. Calif.).

The cases against Christensen and Pellicano, coupled with last year's criminal case involving a Hewlett-Packard Co. (HP) internal investigation in which telephone records were illegally obtained, have prompted lawyers to take a closer look at their own use of private investigators.

"What this shows is you can't just let your investigator go out there and investigate and take the fruits of what he provides and use it," said Mark Mermelstein, of counsel to the Los Angeles office of Orrick, Herrington & Sutcliffe, who specializes in white-collar criminal defense. "As a lawyer, you really need to be on top of what your investigator is doing, and how your investigator is gathering information, to make sure your investigator is not running afoul of the law."

A 'WAKE-UP CALL'

John Caragozian, corporate secretary and senior counsel at Sunkist Growers Inc., and an expert in Los Angeles on privacy issues, called both cases "a wake-up call for lawyers.

"The Pellicano revelations, which include the Christensen case, and the HP revelations," he said, "have woken up some lawyers as to what their liability, criminal or civil, may be with regard to private investigators they've hired."

Prosecutors allege that in early 2002, in the midst of the child support case, Christensen and Pellicano wiretapped and discussed dozens of Bonder Kerkorian's phone conversations, including those with her attorneys, in order to "secure a tactical advantage in litigation," according to the indictment.

In one conversation, Pellicano told Christensen to "be careful about this because there is only one way for me to know this." In another, he told Christensen that "if we continue to get this kind of information with their strategy, we're really killing 'em."

Pellicano passed on information that he claimed was Bonder Kerkorian's "exact words" and noted that "there is no way, except with my unique techniques, that you would know this," according to the indictment.

Assistant U.S. Attorney Daniel Saunders of the Central District of California, lead prosecutor in the case, declined to comment.

Since being indicted two years ago, Christensen has filed multiple defense motions, most of which have focused primarily on suppressing evidence and procedural matters.

Christensen's lawyer, Patricia Glaser, a partner at Christensen Glaser, said, "I know of no evidence that Mr. Christensen either in advance or during the time had knowledge of Mr. Pellicano's allegedly illicit behavior." She declined further comment.

The Christensen case has shined a light on lawyers who hire private investigators.

"Attorneys are noticing it because of the issues related to the representation of a client and prosecution related to that," said Peter Henning, a law professor at Wayne State University Law School who specializes in attorney ethics and white-collar crime. "A lawyer is being prosecuted essentially for what he did to represent a client. That's always a concern with lawyers."

Under ethics rules, a lawyer is responsible for the conduct of those he hires to assist in a legal investigation, he said. But the Christensen and HP cases, he said, broaden that potential liability to include criminal charges.

In the HP case, California prosecutors charged five individuals, including HP's former chairwoman, of illegally obtaining confidential information as part of an internal investigation looking into whether board members leaked information to the news media.

The defendants were accused of pretending to be someone else -- a tactic referred to as pretexting -- in order to obtain the information.

Last year, charges were dismissed in effect against all the defendants; one, a private investigator, has pleaded guilty in a related federal case.

Michael Pancer at the Law Offices of Michael Pancer in San Diego, who represents Kevin Hunsaker, former senior counsel and director of ethics at HP, and one of the defendants in the case, said the Christensen case could make "attorneys be more questioning about what the investigator is doing."

Caragozian said he has noticed lawyers being more careful about the private investigators they hire, often confirming that they are licensed. But lawyers also need to change the perception that, in ignoring what their private investigators are doing or telling them not to engage in illegal conduct, they are insulated from liability, he said.

"The lack of knowledge as to what the investigator did may well be a good defense in a criminal trial," he said. "It isn't a good defense in the event of a civil lawsuit."

In the past, most attorneys tended to remain mum.

"It was very common for a lawyer to say, 'Just find it,'" said Jimmie Mesis, editor-in-chief of PI Magazine, a trade magazine for private investigators, and public relations chairman for the National Council of Investigation and Security Services in Baltimore. "They really didn't care what [investigators] did, whether [it was] garbage dumpster diving or pretexting. It was just a statement of: 'Just do what you have to do to get it.'"

In recent years, his members have noticed lawyers asking them more questions, particularly about their techniques, he said. But he downplayed the overall effect that the Pellicano and Christensen cases have had on the relationship between lawyers and private investigators. One reason for that, he said, is because Pellicano is a "poor example" of most private investigators.

A UNIQUE CASE

The specifics involving Christensen and Pellicano bear little resemblance to most cases in which private investigators are retained, said William T. Barker, a partner in the Chicago office of Sonnenschein Nath & Rosenthal who specializes in legal ethics. He said most private investigators aren't hired to obtain sensitive information, such as the material involved in the Christensen case. Instead, they do more mundane tasks involving background checks and interviewing of witnesses. "There are lots of tasks that private investigators do that just don't run into these problems at all," he said.

As a result, the Christensen case could have minimal effect on ordinary cases.

"Once there is a trial, it may get more attention. If he gets convicted, that will [give] it more attention," Barker said. "A lot will depend on what the facts are as they come out."

But although the Pellicano case is unusual, the fact that Christensen is facing potential jail time for the conduct of his private investigator is significant, said Mermelstein of Orrick.

"Just because it's rare that a private investigator runs afoul of the law, and the lawyer gets charged, doesn't mean lawyers shouldn't be cautious," he said.