February 2017 Bar Bulletin
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February 2017 Bar Bulletin

Tips of the Trade The Investigator as Witness

By Karen Sutherland

 

This article applies to lawyers who work as investigators and lawyers who hire investigators. It is intended as a starting point for discussions between the lawyer and the investigator and between the lawyer and the client regarding different phases of the investigation. The information in this article is based on attorneys’ experiences1 and the Rules of Professional Conduct.

Selecting the Investigator

If there is a possibility that the investigator will be called upon to testify, or that the investigator’s work product will become evidence in a proceeding, the client should be involved in the selection process in light of RPC 1.4(a)(2), which requires the lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be performed.” The following are some points to consider:

• If called to testify, would the investigator be a fact witness, an expert witness or both?

• Does the investigator have experience testifying?

• If the investigator has testified before, is the testimony in prior proceedings likely to create issues if the investigator was to testify in this matter?

• Is there anything in the investigator’s past that may make the investigator less credible as a witness, such as prior discipline by a bar or other professional association or criminal convictions involving the investigator’s truthfulness?

• If the investigator currently or formerly has represented the client, what is the effect of RPC 3.7 Lawyer as Witness; RPC 1.7 Conflict of Interest: Current Clients; and/or RPC 1.9 Duties to Former Clients?

• What, if any, investigation-related communications or work product would be covered by the attorney-client privilege or work product doctrine and are there circumstances under which the client would waive such protection (e.g., to use the investigation as a defense to a hostile work environment claim)?

• Should there be an indemnification provision in the engagement letter in the event that the investigator is required to incur legal fees and costs associated with the investigation?

• Is it necessary to retain a computer forensics expert to preserve electronic evidence and assist in the investigation?

• Does the client understand that the investigator may not reach the conclusion the client is hoping for, and how that would affect the case? This discussion could include explaining Mothershead v. Adams, 32 Wn. App. 325, 328-29, 647 P.2d 525 (1982), to the client, as it can insulate an expert’s opinion from consideration by a factfinder in the absence of exceptional circumstances in cases where CR 26(b)(5)(B) applies.

Setting the Scope
of the Investigation

The following are matters to consider in establishing the scope of the investigation:

• Who determines the scope (e.g., client, complainant, lawyer), and will it be articulated in writing?


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