FYI for my investigator buddies..
- Criminal Law
Lawyer's case a 'wake-up' call for lawyers on use of private eyes
July 14, 2008 By: Amanda Bronstad
/CMO_08_300x250.gif/7a62783052555a746178414144657066?x) egardless of what
happens in the criminal case against Terry Christensen, the Los Angeles lawyer
accused of paying celebrity sleuth Anthony Pellicano to illegally wiretap some
of his opponents, many lawyers are thinking twice about the way they work with
Christensen, managing partner at Christensen, Glaser, Fink, Jacobs, Weil &
Shapiro, and Pellicano, who was recently convicted on dozens of related claims,
are scheduled to go to trial on July 16 on wiretapping and conspiracy to
commit wiretapping charges.
Prosecutors, armed with dozens of recordings of conversations between
Pellicano and Christensen, intend to prove that Christensen paid more than $100,000
to Pellicano to illegally wiretap Lisa Bonder Kerkorian, the ex-wife of
Christensen's client, billionaire investor Kirk Kerkorian, in a child support case.
If convicted, Christensen could face up to 10 years in prison. U.S. v.
Pellicano, No. 2:2005-cr-01046 (C.D. Calif.).
The cases against Christensen and Pellicano, coupled with last year's
criminal case involving a Hewlett-Packard Co. (HP) internal investigation in which
telephone records were illegally obtained, have prompted lawyers to take a
closer look at their own use of private investigators.
"What this shows is you can't just let your investigator go out there and
investigate and take the fruits of what he provides and use it," said Mark
Mermelstein, of counsel to the Los Angeles office of Orrick, Herrington & Sutcliffe,
who specializes in white-collar criminal defense. "As a lawyer, you really
need to be on top of what your investigator is doing, and how your investigator
is gathering information, to make sure your investigator is not running afoul
of the law."
A 'WAKE-UP CALL'
John Caragozian, corporate secretary and senior counsel at Sunkist Growers
Inc., and an expert in Los Angeles on privacy issues, called both cases "a
wake-up call for lawyers.
"The Pellicano revelations, which include the Christensen case, and the HP
revelations," he said, "have woken up some lawyers as to what their liability,
criminal or civil, may be with regard to private investigators they've hired."
Prosecutors allege that in early 2002, in the midst of the child support
case, Christensen and Pellicano wiretapped and discussed dozens of Bonder
Kerkorian's phone conversations, including those with her attorneys, in order to
"secure a tactical advantage in litigation," according to the indictment.
In one conversation, Pellicano told Christensen to "be careful about this
because there is only one way for me to know this." In another, he told
Christensen that "if we continue to get this kind of information with their strategy,
we're really killing 'em."
Pellicano passed on information that he claimed was Bonder Kerkorian's "exact
words" and noted that "there is no way, except with my unique techniques,
that you would know this," according to the indictment.
Assistant U.S. Attorney Daniel Saunders of the Central District of
California, lead prosecutor in the case, declined to comment.
Since being indicted two years ago, Christensen has filed multiple defense
motions, most of which have focused primarily on suppressing evidence and
Christensen's lawyer, Patricia Glaser, a partner at Christensen Glaser, said,
"I know of no evidence that Mr. Christensen either in advance or during the
time had knowledge of Mr. Pellicano's allegedly illicit behavior." She declined
The Christensen case has shined a light on lawyers who hire private
"Attorneys are noticing it because of the issues related to the
representation of a client and prosecution related to that," said Peter Henning, a law
professor at Wayne State University Law School who specializes in attorney ethics
and white-collar crime. "A lawyer is being prosecuted essentially for what he
did to represent a client. That's always a concern with lawyers."
Under ethics rules, a lawyer is responsible for the conduct of those he hires
to assist in a legal investigation, he said. But the Christensen and HP
cases, he said, broaden that potential liability to include criminal charges.
In the HP case, California prosecutors charged five individuals, including
HP's former chairwoman, of illegally obtaining confidential information as part
of an internal investigation looking into whether board members leaked
information to the news media.
The defendants were accused of pretending to be someone else -- a tactic
referred to as pretexting -- in order to obtain the information.
Last year, charges were dismissed in effect against all the defendants; one,
a private investigator, has pleaded guilty in a related federal case.
Michael Pancer at the Law Offices of Michael Pancer in San Diego, who
represents Kevin Hunsaker, former senior counsel and director of ethics at HP, and
one of the defendants in the case, said the Christensen case could make
"attorneys be more questioning about what the investigator is doing."
Caragozian said he has noticed lawyers being more careful about the private
investigators they hire, often confirming that they are licensed. But lawyers
also need to change the perception that, in ignoring what their private
investigators are doing or telling them not to engage in illegal conduct, they are
insulated from liability, he said.
"The lack of knowledge as to what the investigator did may well be a good
defense in a criminal trial," he said. "It isn't a good defense in the event of a
In the past, most attorneys tended to remain mum.
"It was very common for a lawyer to say, 'Just find it,'" said Jimmie Mesis,
editor-in-chief of PI Magazine, a trade magazine for private investigators,
and public relations chairman for the National Council of Investigation and
Security Services in Baltimore. "They really didn't care what [investigators] did,
whether [it was] garbage dumpster diving or pretexting. It was just a
statement of: 'Just do what you have to do to get it.'"
In recent years, his members have noticed lawyers asking them more questions,
particularly about their techniques, he said. But he downplayed the overall
effect that the Pellicano and Christensen cases have had on the relationship
between lawyers and private investigators. One reason for that, he said, is
because Pellicano is a "poor example" of most private investigators.
A UNIQUE CASE
The specifics involving Christensen and Pellicano bear little resemblance to
most cases in which private investigators are retained, said William T.
Barker, a partner in the Chicago office of Sonnenschein Nath & Rosenthal who
specializes in legal ethics. He said most private investigators aren't hired to
obtain sensitive information, such as the material involved in the Christensen
case. Instead, they do more mundane tasks involving background checks and
interviewing of witnesses. "There are lots of tasks that private investigators do that
just don't run into these problems at all," he said.
As a result, the Christensen case could have minimal effect on ordinary
"Once there is a trial, it may get more attention. If he gets convicted, that
will [give] it more attention," Barker said. "A lot will depend on what the
facts are as they come out."
But although the Pellicano case is unusual, the fact that Christensen is
facing potential jail time for the conduct of his private investigator is
significant, said Mermelstein of Orrick.
"Just because it's rare that a private investigator runs afoul of the law,
and the lawyer gets charged, doesn't mean lawyers shouldn't be cautious," he
Amanda Bronstad reports for the National Law Journal, an affiliate of the
Daily Business Review.
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- --- In email@example.com, Jurydoctor@... wrote:
> Criminal Law
> Lawyer's case a 'wake-up' call for lawyers on use of private eyes
> July 14, 2008 By: Amanda Bronstad
> /CMO_08_300x250.gif/7a62783052555a746178414144657066?x) regardlessof what
> happens in the criminal case against Terry Christensen, the LosAngeles lawyer
> accused of paying celebrity sleuth Anthony Pellicano to illegallywiretap some
> of his opponents, many lawyers are thinking twice about the way theywork with
> private investigators.I don't think that attorneys will think twice about the way they work
with Private Investigators. I think that attorneys might be a little
more careful about which P.I. they hire and about making sure that the
P.I. clearly understands what the attorney wants once the P.I. is hired.
Pellicano knew what he was doing was illegal.Christensen got himself
in trouble by what he allowed Pellicano to do while he was working for
him. Apparently the FEDs have tapes to prove this.
I am going to go out on a limb here, but I know attorneys, they talk
amongst themselves, and especially about the people they hire. That is
how I get calls from other attorneys that I don't know. I think it is
almost safe to bet that while Pellicano may have had one reputation
with the public, he had a totally different reputation within the
circle of attorneys there in his locale. I am sure that there were
"red flags" amongst attorneys there in regards to hiring him. Ask some
of the P.I.s in Los Angeles, CA., what Pellicano's reputation was
"within the circle of those in the know"
I know that if I am thinking about sending work to a P.I., and I hear
or see numerous "red flags" about this P.I. having a history of
working a case by illegal means or unethical means, I am simply going
to move onto the next candidate. Christensen knew to do the same
thing, he knew what he was in for when he entered into a business
relationship with Pellicano.