INTERNAL AFFAIRS

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DILEMMA: LAWYER OR INVESTIGATOR

An individual who needs information for whatever purpose - whether to protect personal or business interests, for psychological closure or for the purpose of initiating or continuing civil or criminal proceedings - faces a dilemma involving several choices.

He or she can choose to conduct personal academic and/or practical research - given sufficient resources, time, money, experience and technical knowledge - or consideration can be given to engaging the services of some private person, a lawyer or a private investigator to conduct that research privately on his or her behalf.

If a Criminal act has been committed, one usually (but not always) has a choice - if one chooses to do anything at all - to report the matter to an appropriate law enforcement organization or, in the alternative, to investigate or have the matter investigated privately.

If there has been a Civil wrong - a "tort" - one normally has the option of retaining a lawyer for the purpose of pursuing civil litigation. In some cases, a lawyer may engage the services of a private investigator to assist in the preparation of the case in question.

If there is a need to discover information in order to locate an individual for the purpose of initiating a proceeding, collecting a debt, reuniting a family, dispersing the assets of an estate, investigating a fraud, conducting an interview, photographing a person, place or thing or any other matter that is not an appropriate issue for law enforcement or that law enforcement refuses or neglects to undertake, then one normally may hire a private investigator to conduct whatever enquiries may be necessary in relation to the case.

On occasion, personal research and investigation is sufficient and can achieve positive results.

More commonly, an individual simply lacks the confidence, time, technical knowledge, investigative experience and objectivity to undertake the task and legal, jurisdictional and geographic realities often militate against personal investigation.

The commonly heard observation that "If you choose to represent yourself in court, you have a fool for a counsel", is - generally speaking - equally applicable to anyone who attempts to undertake a task that can and should be more appropriately and effectively dealt with by a professional, no matter what the issue. This is equally true of the field of private investigation as well.

Normally, one does not hire a plumber to do electrical work, an electrician to frame a house, a carpenter to develop a website or a computer programmer to repair a vehicle.

Accordingly, one normally does not - and should not - hire a lawyer to undertake a private investigation any more than one would or should hire a private investigator to act as legal counsel or to represent a person in court (except possibly, where appropriate, as a paralegal or in the capacity of a witness).

While a barrister, solicitor, attorney or legal counsel and may have some innate ability, academic knowledge and limited experience gathering 'facts', such a person can no more be considered an expert in private investigation than can the average person who attempts some simple, limited wiring at home be considered the equivalent of a professional electrician.

In the normal course, the average lawyer - with respect to matters of routine and in the absence of litigation - has no more right to obtain confidential information, strictly speaking, than does the average member of the general public or a private investigator.

That is not to say that a lawyer does not conduct investigations of an academic nature when he or she undertakes research in legal journals, case law, precedents or the rules of civil procedure, but this is a far different form of investigation than that conducted by a private investigator engaged to search for hidden, undiscovered and/or confidential facts.

Furthermore, a lawyer who engages in practical investigative activity that leads to the discovery of relevant facts may find him or herself in a position of conflict as a potential or actual witness that may necessitate withdrawal as a legal representative from the case.

IN THE NORMAL COURSE, AN AVERAGE LAWYER, LIKE THE AVERAGE INDIVIDUAL - UNLESS INFORMATION IS PUBLICLY AVAILABLE OR PROVIDED BY A CLIENT - CANNOT, WITH LIMITED EXCEPTION, FIND PEPPER-IN-A-SALT-SHAKER WITHOUT PROFESSIONAL ASSISTANCE OR A PRIVATE SOURCE OF OTHERWISE CONFIDENTIAL INFORMATION.

In fact, a legal counsel who wisely recognizes his or her limitations will routinely engage the services of professional private investigators rather than try to conduct an investigation him or herself. Not only is it infinitely more appropriate and effective to hire a private investigator, but is equally much less costly in terms of both financial investment and time. (Counsel who do not consult with and/or engage a private investigator to gather necessary facts arguably are doing their clients a disservice.)

Unless civil or criminal litigation is anticipated or in progress, it is simply inappropriate, unnecessary and too costly to retain a lawyer for the purpose of conducting a private investigation. Under such circumstances, the lawyer - if he accepts such an engagement at all - may simply retain the services of a private investigator anyway to do what the lawyer cannot do himself, whether because of lack of knowledge, experience, interest and/or time. The lawyer may then invoice the client both for his time and disbursements as well as for the time and disbursements of the private investigator. Clearly, this is a redundant and costly option for a client particularly if a private investigator could have resolved the matter in any case without the lawyer's involvement.

In Canada, most personal, financial and other information with respect to an 'identifiable individual' such as that defined by the Personal Information Protection and Electronic Documents Act, S.C. (P.I.P.E.D.A.) is considered to be confidential and is lawfully accessible, with some limited exceptions, in only two ways: by Consent or by Court Order.

Clearly, a person who has something to hide and seeks to avoid civil or criminal liability is unlikely to Consent to the disclosure of information that - if revealed - would harm his or her interests.

Furthermore, in order to obtain a Court Order, however, a lawyer normally must first demonstrate to a justice or judge a factual basis that justifies the issuance of the subpoena or Court Order.

If that information cannot be presented, then a Court Order is unlikely to be issued. Thus, a classic "Catch 22" exists. A Court Order may be necessary to compel the production of information relevant to a proceeding, but if information acceptable to the court cannot be presented to justify the Order because of its confidential nature, then a Court Order is unlikely to be issued.

In the absence of information necessary to obtain a Court Order to force the disclosure of the very protected and confidential information for which the Order is being sought and that is necessary to initiate and/or continue a criminal or civil proceeding, then that proceeding may be unable to proceed or may fail, in part, despite the fact that the very information necessary to obtain the Court Order actually does, in fact, exist but can not be presented because of the exclusionary and suppressive nature of rules that render the presentation of confidential information problematic and subject to rejection.

If information is available in the public domain in databases accessible to anyone for a fee through available records from the government, commercial sources, the media or through internet research, there is no need to hire a anyone - including a lawyer - to do what one can do for him or herself (apart from lack of confidence, intellectual inability or simple convenience).

Equally, however, if information is confidential and not available to the public, then hiring a lawyer will be of little to no assistance to obtain such information with respect to routine matters because, as noted, a lawyer - in the absence of a legal proceeding - has no more right, power or ability to obtain confidential information than any other citizen.

For example, there may be more than adequate 'reasonable and probable grounds', 'probable cause', or merely enough data to satisfy the civil 'balance of probabilities' standard that money has been stolen, embezzled, defrauded or otherwise diverted from a person, business or from joint matrimonial assets, but if no information is known as to the location of this money - for example, in what financial institution, province, state or country the money may be - then it will be impossible to obtain a court Order to freeze and recover such assets , or indeed, to even bother applying for such an Order at all.

This situation is compounded where there are multiple jurisdictions, foreign institutions, offshore corporations, proxies acting for account holders, asset managers, international wire transfers and/or electronic (internet) banking. Local law enforcement officers who lack technical knowledge, experience, jurisdictional authority and budgetary resources cannot possibly hope to understand let alone effectively investigate and resolve complex international cases involving money laundering in numerous foreign locations.

(There are exceptions in the event of civil or criminal proceedings pursuant to certain rules of practice related to examinations for discovery, questioning of witnesses, and/or obtaining a deposition, a Mareva Injunction, a subpoena, a warrant or a judicial (court) Order, but such exceptions are themselves limited by opportunity, practical reality and cost and are not at all appropriate or feasible options for a routine, simple enquiry such as the confirmation of a person's current residential or business address or employment. And, for example, while well-framed questions posed by a lawyer during an examination- for-discovery or a cross-examination may be considered investigatory in nature, a sophisticated witness - supremely confident that confidential information is not available to the questioning attorney - may simply commit perjury without any risk of censure.)

WITH RESPECT TO THE ISSUE OF COST, THE CANADA REVENUE AGENCY REPORTS THAT IN 2005, FOR EXAMPLE, 67 % OF CANADIAN TAX FILERS INDICATED THEIR TOTAL INCOME WAS LESS THAN $40,000.00, 19 % INDICATED THEIR TOTAL INCOME WAS BETWEEN $40,000.00 AND $60,000.00 WHILE 11 % INDICATED THAT THEIR TOTAL INCOME WAS BETWEEN $60,000.00 TO $100,000.00.

DISREGARDING THE ISSUE OF HIDDEN OR UNREPORTED REVENUE FROM 'UNDER THE RADAR' SOURCES OR CRIMINAL ACTIVITY, IT IS APPARENT THAT FULLY 86 % OF CANADIAN TAX FILERS INDICATED A TOTAL INCOME OF LESS THAN $60,000.00 BEFORE TAXES, PERSONAL EXPENSES, ACCOMODATION, FOOD AND OTHER COSTS ARE DEDUCTED.

ONLY 3.6 % OF CANADIAN TAX FILERS INDICATED THAT THEIR TOTAL INCOME EXCEEDED $100,000.00

It should be readily apparent that, with income levels of his nature, the vast majority of Canadians - as well as individuals in other countries having similar income challenges in relation to the cost of hiring legal counsel - simply cannot afford to hire a lawyer for any reason whatsoever apart from for routine matters such as the preparation of a will or the infrequent sale or purchase of real property when faced with paying hourly rates equivalent to the weekly after-tax salary of the majority of individuals.

David W. Scott, Chair of Pro Bono Law Ontario and Co-Chair of the national law firm of Borden Ladner Gervais recently commented that, "Access to justice is seriously compromised by the combination of the complexity of the dispute resolution process and the high cost of legal services." . (It has been reported, for example, that a single person earning just $16,000.00 in Ontario, Canada could be considered too "rich" to qualify for legal aid under existing rules!)

Affordability is considerably less of an issue with respect to the ability of many more Canadians and persons with similar income levels relative to the cost of private investigation services in other countries to hire a private investigator owing to much lower hourly and flat rate fees with respect to many matters that are unlikely to ever be referred to a lawyer or are sufficiently undefined that contemplation of legal proceedings is premature as well as personal and corporate surveillance, internal theft and fraud investigations, missing person enquiries, due diligence issues and employment screening research.

In short, then, not only can the average Canadian not afford to hire a lawyer to obtain information necessary to proceed with or continue a prosecution or litigation, but both the lawyer - indeed the investigator - are often systemically prevented from obtaining the very information necessary to initiate or continue a prosecution or litigation.

This can occur even under circumstances where a client is prepared to and capable of paying whatever costs are necessary to move forward unless the lawyer, the client and/or the investigator are prepared to violate existing rules in order to obtain whatever confidential information is necessary and relevant to the case in question and find a way to introduce or use that information without revealing the violation. (See Access to Information)