Rawle’s Reports

Rawle’s Reports, December 2019: Using Private Investigators in Workers’ Comp Cases

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Using Private Investigators in Workers’ Comp Cases
by Zachary M. Rubinich

The value and importance of professional investigators cannot be overstated in the handling of a workers’ compensation claim. Private investigators and attorneys have an important partnership in a legal case together. Moral and ethical behavior by professional investigators along with their general investigative skills and experience are assets to attorneys during the handling, evaluation and resolution of a litigated workers’ compensation matter.

While it is every professional investigator’s responsibility to research, know and abide by all statutes, codes, laws, policies, rules and professional ethics, attorneys must exercise due diligence when selecting and engaging a professional investigator. Attorneys are expected to put in a reasonable effort to ensure supervisory authority that corresponds to the lawyer’s professional obligations. When professional investigators are hired by an attorney, the investigator’s actions must be legal, justified, necessary and without bias. Professional investigators have a responsibility to businesses, professions, clients and the subjects that are the focus of the investigation. It is paramount that the investigator be sure of the client, the subject and the purpose of the investigative assignment. The professional investigator must not jeopardize any parties to the investigation, even the subject, to harm. The professional investigator must not exceed legal authority. In such a case, it is the attorney who will be liable for any consequences arising from the investigator’s ethical violations. Ethical considerations may originate in licensing statute, association code of ethics or professional ethics by way of a client’s specific instructions.

As a general rule, if an attorney is required to do or prohibited from doing something by the Rules of Professional Conduct, so are any agents hired by the attorney, including private investigators. There are many issues of ethics for professional investigators specific to the investigator-attorney relationship. Much investigative work arises from an attorney relationship. Common ethical issues include: using a ruse and false identities, personal or other inappropriate conduct with a represented opposing party, surreptitiously recording conversations, entering onto private property or other prohibited area, and even extending any contact (lawful or not) with a party into a relationship (business, social or personal) that is beyond the scope of the assignment.

Much consideration is given to whether the professional investigator was retained by an attorney, if the parties are represented by an attorney, or if the party retains the attorney directly. It is important to understand the working for the attorney creates a relationship in which the investigator is the agent of the attorney under American Bar Association Rule of Professional Conduct Rule 5.3. This relationship requires that the professional investigator follow the same rules (ethics, procedures and evidence) as the attorney.

In the course of investigations, it is generally unethical for a professional investigator to give a leading or misleading statement as it may produce a response that would not otherwise be the normal words of the subject. Although ruses and pretexts are a form of obtaining information from subjects, it is incumbent for the professional investigator to use caution and follow the direction of the attorney.

Another ethical concern is an invasion of privacy which occurs when a person encroaches upon the place of solitude or seclusion. This includes the use of deceit or trickery during the investigation. This may or may not be a physical trespassing. This may occur by any form of communication or interaction including phone, email and fax. The American Bar Association as well as state bar associations Rules of Professional Conduct, including Pennsylvania, make clear that an attorney and therefore any agent, 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. Simply put, neither attorneys nor their agents, including private investigators, may contact represented parties. An attorney may not solicit the aid of his or her clients or agents to undertake an action that the attorney is ethically prohibited from undertaking.

Another ethical concern is surreptitious recordings of conversations by professional investigators hired by attorneys. Because surreptitious recording of conversations or statements may involve an element of trickery or deceit, it is generally improper for any attorney or an agent such as a professional investigator even if the recording may be legal under state law. The lawyer may not direct or even authorize an agent to surreptitiously record conversations, and may not use the “fruit” of such improper recordings.

Yet another tactic used by professional investigators which raises ethical considerations is pretexting. Pretexting is simply the means that an investigator may use by representing himself in such a way that the subject makes admissions or statements and that the subject would not otherwise have uttered, or providing evidence the investigator would otherwise not have obtained. This can include acting as an agent for a business or company. Generally, there are no exceptions for civil cases, while there are limited exceptions for criminal cases.

Working with a professional investigator may be advantageous to an attorney handling a workers’ compensation matter. Due to the potential liabilities and risks involved in hiring a private investigator (for both the attorney and client), an attorney seeking to do so should first get written approval from the client, and completely document the selection process to protect against claims of alleged negligence in choosing the investigator. Attorneys should seek referrals from trusted colleagues who have actual working experience with the investigator. However, it is essential for the attorney to closely scrutinize the standards, reputation and work product of professional investigators before engaging one for an assignment. The important qualities of a professional investigator include: skills appropriate for the assignment; experience; knowledge; responsibility and ethical conduct; and effective communication.

In the event the hiring attorney should learn that the private investigator has engaged in any type of improper conduct in the performance of their services, despite all of the attorney’s precautions and guidance, the attorney should inform the client, and determine whether immediate termination of the investigator’s services is necessary and/or appropriate. The attorney must determine if the investigator’s misconduct should be brought to the attention of the court or other appropriate authority. The attorney must also consider whether the circumstances warrant reporting of a potential claim to the attorney’s insurance carrier.

In this era of increased attorney accountability and liability for the actions and conduct of their agents, is it a good reminder to all attorneys to perform their due diligence in selecting and exercising their duty of supervision over professional investigators to protect both themselves and their clients during the litigation of a workers’ compensation claim.

Reprinted with permission from the October 15, 2019 edition of The Legal Intelligencer © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Zachary M. Rubinich is a partner in our Philadelphia office. He focuses his practice on the defense of insurance carriers, self-insured entities and third-party administrators against workers’ compensation claims in Pennsylvania. Based on his extensive experience, the Pennsylvania Bar Association Workers’ Compensation Law Section has certified him as Specialist in the practice of workers’ compensation law. Zach has handled all aspects of litigation before workers’ compensation judges, the Workers’ Compensation Appeal Board, the Commonwealth Court and the Pennsylvania Supreme Court.  He routinely counsels employers, insurance carriers and third party administrators on claims management, workplace safety, return-to-work programs, employment practices and risk management. Zach has been appointed to the following American Bar Association Tort Trial and Insurance Practice (TIPS) leadership positions: Vice-Chair of the Litigation and Trial Practice Committee; Vice-Chair of the Appellate Advocacy Committee; member of the Ethics and Professionalism Standing Committee; and member of the CLE Board Committee. These appointments will become effective in September 2019. He is currently Chair of the American Bar Association’s Tort Trial and Insurance Practice (TIPS) Workers’ Compensation and Employers’ Liability Law Committee for 2018-2019. He served as Vice-Chair of this committee for 2015-2016, 2016-2017 and 2017-2018. In addition, Zach served as Vice-Chair of the 2017-2018 American Bar Association Standing Committee for Diversity and Inclusion. Zach has been rated AV Preeminent by Martindale-Hubbell for the eighth consecutive year in 2020. He has been selected as a 2019 Pennsylvania Super Lawyer by Super Lawyers. He was selected as a Pennsylvania Rising Star by Super Lawyers from 2010 to 2014.

Zach can be reached directly at (215) 575-4340 • zrubinich@rawle.com

NEW YORK STATE DENTAL JOURNAL

The New York State Dental Association has accepted an article co-authored by William S. Spiegel and Marc R. Leffler for inclusion in its January 2020 Journal. The article is titled “The Ethical and Legal Pitfalls Associated with Dental Practice Beyond Ability Levels.” The January 2020 issue of the Journal is devoted to legal and ethical topics relating to dentistry.

William S. Spiegel is a partner in our Midtown Manhattan, Jersey City and New Haven offices. He represents healthcare providers in all medical specialty fields. He is a former Assistant Corporation Counsel to the City of New York – Medical Malpractice Division. He is a trial attorney with multiple verdicts in medical and dental malpractice, nursing home negligence and general liability actions. He has obtained defendants’ verdicts in high-exposure trials in Bronx County, Kings County, Queens County, Richmond County and New York County. Mr. Spiegel also represents physicians before the Office of Professional Medical Conduct and dentists before the Office of Professional Discipline. He has additional experience defending nurses, chiropractors, optometrists, psychiatrists, speech therapists, physical therapists, audiologists, massage therapists and medical clinics. He has successfully argued several appeals before the First and Second Departments. He also practices in the areas of premises liability, product liability, business and contract law and municipal liability. He is admitted to practice in New York, New Jersey and Connecticut, and also the U.S. District Courts for the Southern and Eastern Districts of New York and the U.S. District Court for the District of New Jersey.  Mr. Spiegel has been selected as a New York Super Lawyer every year since 2013 and is rated AV Preeminent by Martindale-Hubbell.

Bill can be reached at (212) 643-0200 • wspiegel@rawle.com

Marc R. Leffler is a partner in our Midtown Manhattan and New Haven offices. He practiced Oral Surgery in New York City from 1986-1997. In addition to being a board-certified oral and maxillofacial surgeon, Dr. Leffler is a seasoned trial attorney with a strong record of success at trial and as an appellate advocate. Since 1998, he has practiced law in the areas of dental and medical malpractice. He has tried many cases to verdict and has attained many significant verdicts on behalf of his clients. He also practices in the areas of premises liability, product liability and business and contract law. He is admitted to practice in New York and Connecticut, and also the U.S. District Courts for the Southern and Eastern Districts of New York. Marc has been recognized by Martindale-Hubbell with a rating of AV Preeminent and has been chosen as a New York Super Lawyer every year since 2015.

Marc can be reached at (212) 643-0200 • mleffler@rawle.com

ACOMS RESIDENTS MEETING / NYC MARATHON

Marc R. Leffler spoke at the 8th Annual American College of Oral and Maxillofacial Surgeons (ACOMS) Annual Residents Meeting in Dallas, Texas. The meeting was held November 2-3, 2019, at A. Webb Roberts Hospital. The ACOMS Residents Meeting offers oral and maxillofacial surgery residents valuable practice management lectures from renowned faculty. Marc spoke on November 2 on “Basic Concepts of Dental Malpractice and Lack of Informed Consent, with Representative Closed Cases.”

In addition, Marc ran in the New York City Marathon on November 3, 2019, as a guide for a disabled runner, through Achilles International, an organization dedicated to mainstreaming those with disabilities through competitive athletics.

Marc R. Leffler is a partner in our Midtown Manhattan and New Haven offices. See his bio in the news item above.

Marc can be reached at (212) 643-0200 • mleffler@rawle.com

WORKERS’ COMPENSATION WEBINAR

Mary Bergmann and Zachary M. Rubinich presented a Lorman Education Services Workers’ Compensation Webinar on December 11, 2019. The webinar, titled “Workers’ Compensation Fundamentals,” covered benefits available to injured workers, the use of medical evidence and witnesses to reduce claim costs, deposition of treating physicians and IME doctors, return-to-work strategies, and mediation and settlement conference strategies.

Mary Bergmann is an associate in the Downtown Manhattan and Long Island offices of Rawle & Henderson LLP. She concentrates her practice in the area of workers’ compensation. She has successfully handled matters before the New York Workers’ Compensation Law Board and appeals in the New York State Court of Appeals, the New York State Appellate Division First, Second and Third Departments, and Appellate Term.  She has also handled matters involving insurance coverage, product liability, casualty and premises liability, auto liability and over-the-road truckers’ liability. She earned her J.D. from Brooklyn Law School in 1985 and her B.A. in Political Science from Fordham University in 1981. Mary is admitted to practice in New York, as well as the U.S. District Courts for the Southern and Eastern Districts of New York.

Mary can be reached at (516) 294-2001 • mbergmann@rawle.com

Zachary M. Rubinich is a partner in our Philadelphia office. See his bio earlier in this Rawle’s Reports.

Zach can be reached directly at (215) 575-4340 • zrubinich@rawle.com

SUPPORT CENTER FOR CHILD ADVOCATES

Rawle & Henderson LLP is participating in the Philadelphia Support Center for Child Advocates’ Holiday Toy Drive in December 2019. Patrice S. O’Brien is coordinating the collection of gifts for the firm. In addition, Patrice and Brett A. Wolfson will be volunteer drivers and help deliver toys and gifts to local children in North Philadelphia, Kensington and Southwest Philadelphia. Last year’s campaign delivered toys and gifts to nearly 1,500 children.

Rawle & Henderson has provided pro bono representation for the Support Center since the program’s inception in 1977 as an advocate for victims of child abuse and neglect in and around Philadelphia. Brett Wolfson has represented clients pro bono for the Support Center since 2010 and is Chair of Rawle & Henderson’s Child Advocacy Practice Group. Patrice O’Brien is a member of the Child Advocacy Practice Group.

Patrice S. O’Brien has practiced as a civil trial lawyer for over 30 years in the areas of medical malpractice, products liability, catastrophic loss and premises liability in the Mid-Atlantic region. She is Of Counsel to the Firm in our Philadelphia office. Patrice received her undergraduate degree from Delaware Valley College, magna cum laude, in 1983, and law degree from Columbus School of Law at Catholic University in 1986. For 10 years, she was the captain of Rawle & Henderson LLP’s race team for the annual Komen Philadelphia Race for the Cure, helping to raise funds to find a cure for breast cancer. For the last three years, she has participated in the review of breast cancer research applications for the U.S. Department of Defense. Patrice served a two-year term as co-chair of the Medical–Legal Committee of the State Civil Litigation Section of the Philadelphia Bar Association. She is currently serving a three-year term as a Hearing Committee Member serving the Disciplinary Board of the Supreme Court of Pennsylvania.

Patrice can be reached directly at (215) 575-4222 • pobrien@rawle.com

Brett A. Wolfson is a partner in our Philadelphia office. He focuses his practice on catastrophic injury and/or death cases involving products, construction/industrial/workplace, commercial motor vehicle, medical professional and premises liability.  He serves as a Judge Pro Tem for the Dispute Resolution Center of the Philadelphia Court of Common Pleas. He earned his J.D. from Rutgers University School of Law and his B.A. in Philosophy from West Chester University.  He has also served under two Philadelphia Common Pleas Court Judges, as a law clerk to the Honorable Joseph D. O’Keefe while he was Supervising Judge of the Complex Litigation Center and the Honorable Sandra Mazer Moss as a Team Leader for a major jury program.

Brett can be reached directly at (215) 575-4255 • bwolfson@rawle.com

 

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