Do Lawyers Have a Legal Obligation to Warn PIs of Risks— Or Is It Just the Right Thing to Do?

Private investigator Michael Youlen of Apollo Investigations was hired to serve a subpoena to a member of a white supremacist group in Gloucester, Virginia. Despite being given “fair warning” from the attorney who hired him about the subject’s character and propensity for violence, Michael was surprised by what he encountered when he knocked on the subject’s door. “Who are you?” the man demanded in a confrontational tone while holding an AK-47 pointed towards Youlen’s feet.

“All in all not the most pleasant experience,” Youlen wrote to me in a private email about the experience.

Youlen’s confrontation with the white supremacist ended without violence, and Youlen was able to serve that subpoena and a subsequent subpoena to the same subject successfully, but it just goes to show that sometimes the work of private investigators can be downright dangerous.

In 2011, another Virginia private investigator, Gregory Brown, was killed while trying to serve a divorce complaint to another violent character, Ali Abid. After reportedly tailing Abid in an effort to serve him the divorce complaint, Brown was shot three times. His body was found three days later in the trunk of his car at a shopping mall in Harrisonburg. Abid reportedly fled to Iraq, where he’s still at large.

What I did not know until I was interviewed by Peter Vieth of Virginia Lawyers Weekly for an article he wrote related to the Brown murder, is that the investigator’s widow filed a civil lawsuit against the attorney, Sherwin Jacobs of Harrisonburg, for failing to warn Brown that Abid was armed and dangerous.

The widow had previously secured a $3.5 million default judgment against Abid.

Vieth’s article is titled, “Lawyer sued after murder of process server.”

According to the article, “The case against Jacobs turns on when a lawyer has a duty to alert a private investigator about possible danger from a third party.”

Dismissed by the trial judge last year, the case, captioned Debra D. Brown, Executor of the Estate of Arthur Gregory Brown v. Sherwin John Jacobs, will soon go before the Virginia Supreme Court, which will consider whether there was a “special relationship” between the attorney and the investigator that would have created a duty for Jacobs to warn of the threat posed by Abid.

During my interview with Vieth, I conceded that I couldn’t recall ever being warned by an attorney about a potential danger I might encounter during an investigation, despite the fact that private investigators commonly find themselves in the middle of adverse legal parties who are desperate and furious at each other. However, after I read his article I felt a bit like a jilted lover.

“I really thought our relationship was special,” I thought. I don’t work for anyone else for whom I’d store evidence, including women’s underwear, in my file cabinet, or for whom I’d sit in an abandoned building all night with a video camera. I too have had guns drawn on me and a knife pulled on me once, and I’ve banged up my car doing surveillance. I’m willing to take these risks because I need to make a living, and because I love my job—but also because I love many of the attorneys who I work for. I respect them. Some of them are also my friends.

So, I was a bit disappointed to read in the tone of Vieth’s article that some attorneys may not feel the same special relationship with their private investigators—at least when there is the chance of liability.

I asked some of my colleagues about the dangerous situations they’ve encountered, and I received a lot of interesting responses. Particularly telling was that most of the dangers would probably not be foreseeable. One investigator, for example, reported being beaten up by police officers. Others wrote of the danger of car accidents during surveillance.

“[Process service] and tailing people are the two most dangerous services we have,” wrote Kenneth D’Angelo of Target Investigations. “Following people is so dangerous because of the risk of a traffic accident, not necessarily for being confronted by the target.”

It’s hard to warn against being sideswiped by a truck at an intersection while focusing on the person you’re trying to follow. For that reason, perhaps the impetus (legal or otherwise) should ultimately be on private investigators to be careful out there.

But putting legal liability and unforeseeable dangers aside, telling the private investigator you hire everything you know about the known dangerous characters they might encounter is not only the right thing to do, it’s also the best thing to do for the outcome of your case. Youlen, for example, was able to serve the subpoenas and not get his kneecaps blown off by the white supremacist because he was duly warned about what he was getting into and was able to play it cool when faced with a volatile situation.

Special relationship or not, when attorneys hire private investigators they’re in it together, and the more information we share the better the relationship will be.

We have your back. Please have ours too.

More by | Philip Becnel Philip Becnel , Law.com Contributor
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