All attorneys who litigate workers’ compensation matters on behalf of injured workers in Pennsylvania have seen their fair share of reports from investigators who are employees of companies hired by insurance companies and defense counsel to conduct surveillance of the plaintiff or claimant. In reviewing the reports, one will invariably note phrases such as “verified subject’s identity through discreet investigative techniques” or “utilized investigative pretext to verify identity.”
What do these vague statements mean?
If you ask the investigator, he or she will usually divulge that this means the investigator either called your client or knocked on your client’s door and spoke directly with that client.
If you probe further, you may learn that the investigator has conveniently failed to divulge to your client who he or she really is, and the true purpose of the telephone call or presence on your client’s porch. You may learn that the investigator has, for example, told your client he or she is from a package delivery company and needs to verify when your client will be home in order to make a delivery.
Is this investigative pretext a Rule 4.2 violation?
The Pennsylvania Rules of Professional Conduct are derived from the American Bar Association’s Model Rules of Professional Conduct. Rule 4.2 is identical to the Code of Professional Responsibility Disciplinary Rule 7-104(A)(1), and states in pertinent part:
“During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
Per the comments, Rule 4.2 contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation.
Moreover, the rule applies to communications with any person represented by counsel concerning the matter to which the communication relates. The rule does not, however, prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.
Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, or knowingly assist or induce another to do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.
Evidence obtained as a result of a rules violation is generally inadmissible. Indeed, federal courts applying Pennsylvania law have refused to admit evidence obtained through a professional conduct rules violation, as in Lennen v. John Eppler Machine Works, Civil Action No. 97-2830 (E.D. Pa. Sep. 5 1997).
The Lennen court reasoned that by finding the evidence admissible, it would allow the violating attorney to benefit from his rules violation. However, disqualification of counsel is generally not an appropriate sanction for violations of Rule 4.2, as in McCarthy v. SEPTA, 772 A.2d 987 (Pa. Super. 2001). Because the violating party may present the same information if it is obtained through other legitimate discovery processes, disqualification of the violating attorney is appropriate only when it is necessary to “ensure the parties receive the fair trial which due process requires,” as the McCarthy court held.
So, is an investigator’s discussion with your unknowing client the type of communication on the subject of the representation that would warrant preclusion of that investigator’s report or sanctions against the attorney?
Although there is no case to provide a clear answer to this question, challenging the admissibility of such reports can be a helpful technique in providing excellent advocacy for your injured client.
Reviewing so-called investigative reports to determine whether any of these techniques were used is a good first step. The report will never say, “I knocked on the subject’s door and spoke to her,” so when we see the vague language regarding investigative pretext, that is a good point to reach out to our opponents to request clarification and to remind opposing counsel that he or she may not communicate or cause another to communicate with our client.
In addition, if the report fails to reveal that such techniques were used, cross-examination should always include questions regarding whether the investigator ever had any direct contact with our client. The answers to these questions may reveal that direct contact was made to the client, which may then lead to further questioning regarding the investigator’s certain failure to have identified himself or herself as an investigator hired either by opposing counsel or by an insurance carrier or employer.
Particularly when the investigator has been hired by opposing counsel, a motion should then be made for the investigator’s testimony, report and video to be precluded. Even if the argument is not successful from an admissibility standpoint, it can be helpful in reducing the credibility of any other impressions offered by the investigator relative to a client’s condition and capabilities. In addition, shedding light on the investigator’s use of these techniques could reduce the overall credibility of your opponent’s case or provide additional leverage for settlement, purposes depending upon the needs of the case. •