Recently, there have been reports in the press that private investigators may have improperly obtained information about prominent people through illegal methods. In addition to wiretaps, the articles have mentioned the use of “pretext,” which apparently means that the investigators, to convince third parties to disclose confidential information, may have misrepresented that they, the investigators, were actually the prominent people being investigated.
There have been suggestions that some of these investigators were engaged to collect information by lawyers. Indeed, it is often the case that investigators and other types of consultants are hired at a client’s direction by counsel in the hope of cloaking the work of the consultants in privilege. While the applicability of the attorney-client privilege to the communications between consultants and lawyers is limited, if the investigatory work is preformed in anticipation of litigation under the direction of a lawyer, there is a good chance that attorney work product protection will be available.
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