Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association
Vol. 27, No. 9
to work closely with private investigators to ensure compliance with
the Private Investigator Act and the Rules of Professional Conduct
John S. Caragozian
By reading this article and answering the accompanying test
can earn one MCLE
legal ethics credit. To apply for credit, please follow the instructions
on the test.
Lawyers often engage private investigators for sensitive assignments,
such as conducting surveillance, obtaining admissions, and finding assets.
Many lawyers do not know how investigators perform their work; other lawyers
do not want to know. However, ignorance may not be bliss for California
lawyers and investigators. In fact, it can be dangerous. An investigation
that involves deception--even if the investigator has avoided perpetrating
an outright lie--may jeopardize an investigator's license. Further, if
the investigation invades someone's privacy or is otherwise tortious,
both the investigator and the person hiring the investigator may face
civil liability. Finally, criminal penalties exist for unlicensed investigators
and persons who knowingly hire them.
California's Private Investigator Act (PIA)1 prohibits private investigators
from committing "any act constituting dishonesty or fraud."2 The court
of appeal in Wayne v. Bureau of Private Investigators and Adjusters3 broadly
applied this prohibition. In Wayne, an investigator retained by the defendants'
insurance companies visited accident victims at home and misled them about
who had retained him. The investigator never lied but did not identify
his principals. The court of appeal upheld suspension of the investigator's
in this case did not act entirely in good faith with the persons he
interviewed....[H]e knew the interviewees wanted...to know whom he represented,
he knew that he did not tell the interviewees the whole truth about
whom in fact he represented, and further he knew from what he told the
interviewees that they were mistakenly of the belief that in some capacity
or way he was connected or associated with those whose interests were
with the interviewees. There was a want of full probity or fairness
in the transactions. The [investigator] was acting...to the end that
he would gain a benefit to himself and those companies...he represented
to the disadvantage of the interviewees or [their] insurance carriers....It
was not a simple or casual omission to tell the exact and whole truth
on a single occasion, but...was a studied course deliberately to mislead
the unwary and by telling part truths thereby to deceive the interviewees
into believing that [the investigator] in some respect represented their
agents or principals.
There was a disposition
to deceive, betray, and mislead the interviewees. In other words, there
was a lack of complete integrity.4
Wayne does not define the PIA's prohibition narrowly or technically.
Rather, "dishonesty may very well be something less than criminality,"
and "fraud embraces multifarious means whereby one person gains advantage
over another.... " Thus, "the conduct complained of constituted dishonesty
Wayne's interpretation of the PIA's "dishonesty or fraud" language has
been repeatedly cited by California courts.6 While investigators may argue
that "in pursuing their business [they] must necessarily resort to tricks
and ruses" and that investigators "will get nowhere by the direct approach,"
such arguments have not been accepted.7 Likewise, the argument that the
"dishonesty or fraud" prohibition applies only to investigators' conduct
toward their clients and does not apply to their "dealings with opponent's
clients" has been rejected.8
The California Supreme Court approved and extended Wayne in Redner v.
Workmen's Compensation Appeals Board.9 A workers' compensation insurance
carrier retained an investigator who hired someone to pose as a friend
of an injured worker. The purported friend plied the worker with alcohol
and then induced the worker to go horseback riding, which the investigator
captured on film. The carrier proceeded to offer the film as evidence.
The supreme court held that "the [workers' compensation] referee should
have refused to rely upon [the film] because the carrier obtained it by
fraudulent inducement...." Moreover, according to the court:
[T]he carrier should
not profit from its own deceitful conduct. The investigators feigned
friendship and concealed their employer's identity....Nothing in the
record so much as suggests that in the absence of the fraudulent inducement
[the worker] would have taken the ride. Indeed, the referee found that
the carrier fraudulently obtained the film by means of violation of
[the worker's] rights....10
Further, the Redner court held that victims of investigators may seek
may well make an intrusion in to the individual's right of privacy which
would be objectionable or offensive to the reasonable man....Courts
have permitted such an individual to maintain an action for damages
against the intruders.11
In Noble v. Sears, Roebuck and Company,12 the court of appeal extended
Redner by holding that lawyers retaining an investigator may be liable
for at least some of the investigator's torts. In Noble, an investigator
was retained by Sears's lawyers who had been defending Sears in an underlying
personal injury suit. According to the pleadings, the investigator had
"gained admittance to a hospital room where plaintiff was confined" and,
"by deception," obtained a witness's address. The plaintiff sued Sears,
its lawyers, and the investigator, but the trial court sustained a demurrer
to the complaint. Ruling on the plaintiff's appeal of the demurrer, the
Noble court held that, under the pleaded facts, "an unreasonably intrusive
investigation may violate a plaintiff's right to privacy."13 Further,
Sears and the lawyers may have vicarious liability:
[I]t appears that
in California the hirer of a detective agency for either a single investigation
or for the protection of property, may be liable for the intentional
torts of employees of the private detective agency committed in the
course of employment.14
Also, under the pleaded facts, Sears and Sears's lawyers may have primary
liability for their own "negligent supervision" or "negligent entrustment"
of the investigator.15
In sum, California case law indicates that:
1) The PIA prohibits investigators from misrepresenting themselves or
their principals--whether the misrepresentation occurs affirmatively or
by silence and whether or not an investigator actually lies.
2) Evidence obtained as a result of misrepresentation might be excluded
in civil proceedings.
3) Victims of torts related to misrepresentations may seek damages against
4) Victims of intentional torts may seek damages against attorneys or
others hiring the investigators.
5) Victims of negligently supervised or entrusted investigators may seek
damages from attorneys or others hiring the investigators.
Indeed, this case law might possibly be read as precluding all undercover
investigations--that is, those investigations in which the investigators
fail to disclose their true status, pose as someone they are not, and
thereby seek to obtain admissions or other evidence. If so, then investigators
who conduct undercover investigations--with the possible exception of
investigations into certain insurance claims16--might be engaging in "dishonesty
or fraud" under the PIA.
The breadth of this possibility is significant. The use of investigators
in today's business climate may be exemplified by two scenarios. In the
first, a business owner experiencing a loss of inventory and suspecting
theft by workers retains a private investigator to pose as a worker in
order to observe and learn whether employees are indeed involved in theft.
The investigator usually avoids telling lies but engages in casual conversations
that serve to encourage his or her acceptance by the other workers and
elicit approaches by would-be thieves. (For example, the investigator
might say, "I could use some extra money," or "How secure is this warehouse?")
In the second, a business suspects that a competitor is misrepresenting
itself and hires an investigator to pose as a prospect for the competing
business. The investigator, without disclosing his or her true role, asks
questions as a means of gathering information about how the competitor
is describing its status and activities. For example, an accredited vocational
school may want to discover whether an unaccredited vocational school
is misleading prospective students by claiming to be accredited. The investigator
might say, "I am thinking about your school, but I want to know if it
is accredited." By asking this question, the investigator is avoiding
a direct lie but is being misleading. The investigator clearly wants to
know about the school's accreditation, but he or she wants to be perceived
as a real potential student.
In both types of scenarios, investigators do not disclose that they are
investigators and do not reveal who has hired them. Moreover, investigators
deliberately mislead others into believing that they are something they
are not. Indeed, they are not fellow workers or business prospects. Investigators
use the misconceptions about their identity to obtain evidence that most
likely would not have been forthcoming if they had disclosed that they
If these scenarios portray prohibited conduct, then many investigators
and their principals will have difficulty in ferreting out wrongdoing
and wrongdoers. On the other hand, if the scenarios portray permitted
conduct, then courts may have difficulty in articulating objective standards
that allow private investigators to pose as colleagues or prospective
customers but not as allies (as in Wayne) or friends (as in Redner). Of
course, Wayne also included in-home visits, Redner involved intoxication,
and Noble featured a hospital room visit, but the case law did not indicate
that, absent these particular facts, the subject investigations would
have been permissible.
In addition to the general prohibition of dishonesty or fraud, the PIA
provides for denial, suspension, and revocation of an investigator's license
for specific types of misconduct. These include: impersonating a law enforcement
officer; using a badge; using a uniform, insignia, or identification card
"to give an impression" of connection with the government; committing
assault, battery, or kidnaping, or using "force or violence without proper
justification"; committing any violation of the California Privacy Act,17
which outlaws secret wiretapping, eavesdropping, and recording; "using
illegal means" in debt collection; or accepting employment "adverse to
a client or former client" relating to a matter about which the investigator
obtained "confidential information."18
Protections and Risks
While the PIA does not expressly confer privileges or immunities on private
investigators, the Civil Code accords every person a qualified privilege
against some tort liability if his or her conduct consisted of a communication
"to a person interested therein..." who "requested...the information"19
and an absolute privilege if the conduct was in a "judicial...or...other
proceeding authorized by law."20 However, no reported case has held that
investigators have any greater claim to these privileges than other persons.
Accordingly, investigators may be liable for torts such as fraud, trespass,
invasion of privacy, battery, and false imprisonment. Likewise, investigators
may be liable for violating statutes such as the Uniform Trade Secrets
Act.21 Other persons may be vicariously liable for any of this wrongdoing
by retaining an investigator, especially if the investigator had advertised
his or her capabilities for working undercover. The advertising may impute
notice to the hirers of the investigator of potential Wayne-type problems.
Also, no per se private investigator-client privilege or private investigator
work product doctrine has been held to exist. The PIA does provide that,
in the absence of a client's consent, an investigator "shall not divulge...,
except as he or she may be required by law..., any information acquired..."
(though "criminal offense" information "may" be divulged to law enforcement
officers).22 Thus, investigators have a duty of confidentiality, but the
case law expressly leaves open the question of whether this duty creates
any corresponding privilege against discovery.23 Nevertheless, investigators
must allow relevant discovery of the identity of their clients.24
Without the certainty of a privilege, private investigators face the
possibility that their work product and communications with clients might
be discoverable. Investigators are not entirely vulnerable in this area,
however. There are two grounds for objection to discovery that investigators
may be able to utilize. First, an investigator (or the investigator's
client) may assert a privacy objection.25
Second, while investigators might not have their own protections, investigators
retained by lawyers might avail themselves of the lawyers' protections.
Investigators retained by lawyers in litigation may assert the attorney
work product doctrine to prevent disclosure of the lawyer's or the investigator's
"impressions, conclusions, opinions, or...theories."26 Similarly, communications
between a lawyer's client and an investigator who is the lawyer's agent
may be protected by the lawyer-client privilege.27
Lawyers retaining investigators face their own set of prohibitions and
risks. For example, a lawyer may not compensate an investigator by "directly
or indirectly" sharing fees from the lawyer's client.28 Also, lawyers
must be careful not to violate Rule 2-100 of the California Rules of Professional
Conduct, which prohibits a lawyer from "directly or indirectly" communicating
"about the subject of the representation" with a party represented by
another lawyer. A violation of Rule 2-100 can occur if a lawyer engages
an investigator to communicate with a party that the lawyer knows to be
represented by another lawyer.
In Jorgensen v. Taco Bell Corporation,29 the court of appeal found no
violation of Rule 2-100 when a prospective plaintiff's lawyer retained
an investigator to interview a corporation's employees seven months before
the plaintiff sued the corporation. The court expressly rejected the corporation's
argument that the lawyer "should have known" that the corporation "would
be represented" or had "house counsel."30 However, the Jorgensen court
implied that a closer question would be presented if the investigator
had conducted the interviews "on the eve of the filing of the lawsuit"
and that a lawyer would violate Rule 2-100 if the lawyer hired an investigator
to communicate with a represented adversary or represented witness after
Lawyers who violate Rule 2-100 face sanctions by the trial court, including
disqualification from any role in the lawsuit at issue.32 These sanctions
are in addition to any disciplinary actions that the State Bar of California
may take.33 However, a Rule 2-100 violation does not give rise to a civil
action for damages.34
Given these proscriptions, investigators and their principals may wonder
if any private investigation is lawful. In California, at least five investigatory
activities generally are permissible:
1) Overt investigations, in which investigators identify their roles
and principals and do not otherwise mislead or deceive anyone.
2) Public records searches.35
3) Physical observations, measurements, and the like.
4) Protection of a person, if it is "incidental" to an investigation and
if the investigator complies with the PIA's firearms and insurance requirements.36
5) Surveillance, even if covert, provided that investigators do not trespass
or invade privacy.
The privacy issue bears careful study, because California has common
law,37 constitutional,38 and statutory protections against the invasion
of privacy. The privacy statutes are numerous and scattered, ranging from
an antipaparazzi law (banning certain photography of "personal or familial
activity")39 and an antistalking law40 to a recently enacted ban on the
use of a "telescope, binoculars, camera,...or camcorder" to view the interior
of a "bedroom, bathroom,...or the interior of any other area in which
the occupant has a reasonable expectation of privacy."41 To complicate
matters further, federal privacy statutes also exist.42
Licensing Issues and Exempt Persons
Under the PIA, a private investigator is any person:
[W]ho, for any
consideration...whatsoever engages in business or accepts employment
to furnish, or agrees to make, or makes, any investigation for the purpose
of obtaining, information with reference to:....
(b) The identity,
habits, conduct, business, occupation, honesty,...knowledge,...whereabouts,...associations,...acts,
reputation, or character of any person.
(c) The location...of
lost or stolen property.
(d) The cause
or responsibility for fires, libels, losses, accidents, or damage or
evidence to be used before any court....43
must be licensed by the Bureau of Security and Investigative Services
(BSIS), which is part of the Department of Consumer Affairs.44 To obtain
a license, an investigator must submit an application, pay a fee, possess
certain experience requirements, and pass an examination--and once the
license is granted, it must be renewed periodically.45
Unlicensed persons (not including those considered exempt under the PIA)
who represent themselves as licensed or act as private investigators are
committing a misdemeanor and may be jailed for up to one year and fined
$5,000.46 In addition, anyone--presumably including a lawyer--who "knowingly"
engages an unlicensed investigator or who conspires to have an unlicensed
person operate as an investigator also commits a misdemeanor with the
same penalties.47 Public prosecutors may seek civil remedies against unlicensed
investigators, their coconspirators, and anyone who knowingly engages
such investigators. The civil remedies include an injunction (for which
prosecutors need not "show lack of adequate remedy at law or irreparable
injury"), a civil fine of up to $10,000, and reimbursement of BSIS investigation
The PIA does not contain a private right of action for licensing violations.
However, private parties might have at least three indirect remedies.
First, a licensing violation would be an "unlawful...business act or practice"
under the Unfair Competition Law, which generally affords private parties
equitable relief, including an injunction and, if appropriate, restitution.49
Second, an aggrieved litigant might move to exclude evidence gathered
by an unlicensed investigator.50 Third, a person who contracts with an
unlicensed investigator might seek to avoid paying the investigator's
fees on the ground that the contract is illegal.51
May a licensed investigator employ or contract with unlicensed persons
to perform investigative tasks? The answer appears to be a qualified yes.
Under the PIA, a licensee may be an individual, partnership, corporation,
or other business.52 If the licensee is a partnership, corporation, or
other business, it must designate a licensed "manager," under whose "direction,
control, charge, or management the business...is operated."53 The individual
or manager licensee is "legally responsible for the good conduct...of
his or her employees or agents...,"54 and only the licensee, manager,
or other person authorized by them may submit a "written report...to a
client."55 Also, employees of licensed investigators may provide "incidental"
The PIA exempts several classes of persons from its purview, including
its licensing requirement. Among those for whom the PIA does not apply
Employees "employed exclusively and regularly" by an employer
"in connection with the affairs of such employer." While this exemption
requires the unlicensed, in-house investigator to be a W-2 employee, no
court has interpreted the "affairs of such employer" language. Is the
unlicensed employee limited, say, to investigations on the employer's
premises or relating to the employer's suppliers, customers, or other
employees? Or may the unlicensed employee also visit the employer's competitors
and investigate their businesses? May the unlicensed employee investigate
prospective employees or potential competitors? No reported case law has
addressed these questions.
who are "off duty" and privately employed (unless they carry firearms).
No case law indicates whether lawyers' employees also are exempt.
agents, brokers, and adjusters.
savings associations, secured creditors seeking repossession, and credit-reporting
information solely from public records.
Beyond the statutory exemptions, some case law holds that at least some
experts, consultants, and others performing investigative work also need
not be licensed. However, these decisions are neither recent nor fully
In Kennard v. Rosenberg,58 two licensed chemical engineers and a retired
city fire inspector sued Nate Rosenberg to collect their professional
fees. Rosenberg had been indicted for arson of his nightclub. His lawyer
retained the fire inspector after the inspector had stated that he was
not licensed and "acted only in the capacity of consultant or an expert."
The lawyer also retained the engineers who conducted tests, examined photographs,
prepared court exhibits, and--along with the inspector--attended the preliminary
hearing and consulted with the lawyer. Rosenberg's defense for not paying
the three was that the PIA required them to be licensed as private investigators.
The trial court rejected this defense, and the court of appeal affirmed.
The appellate court, announcing that "none of the [three experts/consultants]
were engaged in the private detective business," reasoned that the engineers
were licensed engineers and thus "were authorized to make investigations
in connection with that profession...." Moreover, the court continued:
[T]he private detective
license law was not intended...to place a limitation on the right of
professional engineers to make chemical tests...and to testify....A
physician, geologist, accountant, engineer, surveyor or a handwriting
expert, undoubtedly, may lawfully testify in court in connection with
his findings without first procuring a license as a private detective,
and...a photographer may be employed to take photographs of damaged
premises for use in the court without procuring such a license.59
Thus, experts--particularly in recognized, forensic disciplines--may
be retained to investigate matters in litigation without being licensed
In Mason v. Peaslee,60 Russell Mason, an unlicensed sound engineer, sued
his client Margaret Peaslee after she refused to pay his fees. For eighteen
years, Mason had taped "meetings..., speeches,...and personal conversations"
for corporations, attorneys, individuals, and law enforcement agencies--"in
many instances" without the subjects' knowledge. Peaslee requested Mason
to install recording devices in her husband's office to determine if the
husband was "dishonest and secreting money" or "a sex pervert." Mason
did so. The trial court granted a nonsuit on the ground that the contract
was illegal, because Mason lacked an investigator's license. The court
of appeal reversed, on two grounds. First, the PIA's requirement of a
license for persons who "engage" in the investigation business connotes
"frequency of action," and the trial court "could not draw the inference
that [Mason's] work in recording conversations for others was done in
such a manner as to constitute doing business as a private investigator...."61
Second, the court noted that Mason did not personally "conduct any investigation...."
Indeed, according to the court, "Mason...merely furnished to [Peaslee]
the devices with which she could carry out her own investigation and...in
operating the devices he acted not as an investigator but as one employed
by [Peaslee] to render technical aid to her in operating the devices which
she had rented from him."62
The Mason court seemed to hold that 1) an investigator need not be licensed
to conduct a one-time investigation, and 2) merely furnishing and operating
surveillance equipment is not an investigation. Mason's holdings, though,
appear unsound. For example, if the word "engage" connotes "frequency,"
then, using the same logic, an unlicensed person could perform dental
surgery on one occasion, because dentists' licenses are required only
for persons who "engage in the practice of dentistry...."63 Unsurprisingly,
no court has ever cited Mason's interpretation of the PIA, and it would
be risky for unlicensed investigators or anyone contemplating retention
of an unlicensed investigator to rely on it.
Persons exempt from the PIA (such as in-house investigators) enjoy not
only freedom from licensing, but, ironically, perhaps greater latitude
than licensed investigators in undercover investigations. To be sure,
exempt persons still must avoid torts and statutory violations, but Wayne
holds licensed investigators to higher standards. For example, Wayne suggests
that the PIA's "dishonesty or fraud" language could--at least in part--encompass
silence, does not expressly require that the victims' reliance be reasonable,
and does not mention damages. By contrast, actionable fraud excludes misrepresentations
by silence except in limited circumstances,64 requires that the reliance
be reasonable,65 and requires actual damages.66 Thus, in Wayne, as well
as in the typical types of scenarios in which businesses use undercover
investigations, exempt persons might have been able to conduct the investigations,
even if licensed investigators could not. Indeed, exempt persons might
be able to investigate in ways that avoid tort or statutory liability,
but licensed investigators must also reckon with Wayne.67
In the celebrated 1939 novel and 1946 movie The Big Sleep, Los Angeles
private detective Philip Marlowe was retained by General Guy Sternwood
to investigate Arthur Geiger, after Geiger had requested payment of some
suspect promissory notes. Marlowe's investigation included two visits
to Geiger's book shop on Hollywood Boulevard. On the first visit, Marlowe
pretended to be interested in buying books; on the second, he pretended
to have a book to sell. In neither visit did Marlowe disclose that he
was an investigator or that General Sternwood had retained him. Under
Wayne and its progeny, Marlowe might well have violated the PIA and risked
BSIS discipline and civil liability. The fictional Philip Marlowe could
ignore such risks. Nonfictional investigators and lawyers cannot.
1 Bus. & Prof.
2 Bus. & Prof. Code §7538(b). See also Bus. & Prof. Code §7561.4.
3 Wayne v. Bureau of Private Investigators & Adjusters, 201 Cal. App.
2d 427 (1962).
4 Id. at 437.
5 Id. See also Taylor v. Bureau of Private Investigators & Adjusters,
128 Cal. App. 2d 219, 227-28 (1954) (upholding the bureau's suspension
of a license after an investigator truthfully said he was an investigator
but lied about who had retained him).
6 See, e.g., Chodur v. Edmonds, 174 Cal. App. 3d 565, 570 (1985).
7 See Taylor, 128 Cal. App. 2d at 227. See also Wayne, 201 Cal. App.
2d at 437-38 (An investigator's admission that, without concealing information
from interviewees, "undoubtedly he would have had to return to his office
with no statements" is evidence of fraud.).
8 Taylor, 128 Cal. App. 2d at 227-28.
9 Redner v. Workmen's Comp. Appeals Bd., 5 Cal. 3d 83 (1971).
10 Id. at 93-94.
11 Id. at 94 n.13 (citations omitted).
12 Noble v. Sears, Roebuck & Co., 33 Cal. App. 3d 654 (1973).
13 Id. at 660.
14 Id. at 663 (footnote omitted). Noble expressly leaves open the question
of whether the "hirer" could be liable for an investigator's "negligent
torts." Id. at 663 n.8.
15 Id. at 663-64.
16 See the Insurance Information and Privacy Protection Act, Ins. Code
§§791-791.27. The act allows "pretext interviews" (meaning interviewers
pretend "to be someone [they are] not, misrepresent their principals'
identities, misrepresent the interview's "true purpose," or refuse to
identify themselves) to investigate insurance claims "where there is
a reasonable basis for suspecting criminal activity, fraud,...or material
non-disclosure...." Ins. Code §§791.02(u), 791.03. No reported decisions
have considered this language, much less opined whether or how it applies
to private investigators.
17 Penal Code §§630-637.9.
18 Bus. & Prof. Code §§7539(d), (e), 7561.1(e), (h), (m), 7561.4(b),
(d). See also Penal Code §§631, 632.
19 Civ. Code §47(3).
20 Civ. Code §47(2). How closely related the conduct must be to the
proceedings has been the subject of substantial case law. See, e.g.,
Knoell v. Petrovich, 76 Cal. App. 4th 164 (1999); Rosenthal v. Irell
& Manella, 135 Cal. App. 3d 121 (1982).
21 See Civ. Code §§3426-3426.11.
22 Bus. & Prof. Code §7539(a).
23 Flynn v. Superior Court, 57 Cal. App. 4th 990, 993-94 (1997).
24 Id. at 995-96.
25 Cf. Valley Bank of Nev. v. Superior Court, 15 Cal. 3d 652, 658 (1975)
(A bank may assert its customers' constitutional privacy rights to prevent
discovery of customer records, even absent an Evidence Code privilege.).
On the other hand, parties seeking discovery of investigators' records
should note that the "personal records" listed in Code of Civil Procedure
§1985.3 (which codified Valley Bank of Nevada) do not include investigators'
26 See Code Civ. Proc. §2018(c); Fed. R. Civ. P. 26(b)(3). See also
Rodriguez v. McDonnell Douglas Corp., 87 Cal. App. 3d 626, 647-48 (1978)
(An investigator retained by a defendant's lawyer took notes regarding
what a witness stated. The notes would have been discoverable under
California law, because they were "nonderivative or noninterpretive."
However, the investigator's own "comments about [the witness's] statement"
are "protected absolutely from disclosure," and the comments were "so
intertwined" with the notes that "all portions...should be held protected...."
(emphasis in original)); and O'Connor v. Boeing N. Am., Inc., 216 F.R.D.
640, 652-53 (C.D. Cal. 2003) (A private investigator who interviewed
witnesses "on plaintiff's counsel's behalf" was protected by the federal
attorney work product doctrine from having to disclose what the witnesses
27 Cf. City & County of S.F. v. Superior Court, 37 Cal. 2d 227, 236
28 Cal. Rules of Prof'l Conduct, R. 1-320(A).
29 Jorgensen v. Taco Bell Corp., 50 Cal. App. 4th 1398 (1996).
30 Id. at 1401-02, 1403.
31 Id. at 1402-03.
32 See, e.g., Lewis v. Telephone Employees Credit Union, 87 F. 3d 1537,
1558 (9th Cir. 1996); Mills Land & Water Co. v. Golden West Ref. Co.,
186 Cal. App. 3d 116, 133 (1986).
33 See Bus. & Prof. Code §6077.
34 Noble v. Sears, Roebuck & Co., 33 Cal. App. 3d 654, 658 (1973).
35 In obtaining public records, investigators must comport with the
Information Practices Act, Civ. Code §§1798-1798.78. The act includes
a private right of action against individuals disclosing nonpublic "personal
information" from federal or state records. See Civ. Code §1798.53.
36 See Bus. & Prof. Code §7521.5.
37 See, e.g., Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 429, 533 (1971)
(The California Supreme Court expressed concern about, inter alia, "electronic
devices with their capacity to destroy an individual's anonymity, intrude
upon his most intimate activities, and expose his most personal characteristics....").
38 Cal. Const. art. I, §1. See also Schuman v. Group W Prods., 18 Cal.
4th 200, 231 (1998) (The invasion of constitutional privacy has two
elements: "(1) intrusion into a private place, conversation, or matter,
(2) in a manner highly offensive to a reasonable person.").
39 Civ. Code §1708.8.
40 Civ. Code §1708.7.
41 S.B. 1484, effective Jan. 1, 2005 (to be codified at Penal Code §647(k)).
42 See, e.g., the Electronic Communications Privacy Act, 18 U.S.C. §§2510-22,
and the Stored Communications Act, 18 U.S.C. §§2701-11.
43 Bus. & Prof. Code §7521.
44 Bus. & Prof. Code §§7520, 7528.
45 Bus. & Prof. Code §§7525, 7525.1, 7526, 7527, 7541, 7541.1.
46 Bus. & Prof. Code §7523(b).
48 Bus. & Prof. Code §7523.5(a), (c).
49 Bus. & Prof. Code §§17200, 17203.
50 Cf. Peat, Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App.
3d 272, 287 (1988).
51 Cf. Loring & Evans v. Blick, 33 Cal. 2d 603, 607 (1949). But see,
e.g., Marshall v. Von Zumwalt, 120 Cal. App. 2d 807, 810 (1953) (ruling
in favor of an unlicensed contractor on the ground that "[c]ontracts
made in violation of statutes, if not malum in se, are sometimes held
52 Bus. & Prof. Code §§7512.3, 7520, 7525.1(e).
53 Bus. & Prof. Code §§7512.7, 7525.1(e),(g), (h), 7526, 7527.
54 Bus. & Prof. Code §7531.
55 Bus. & Prof. Code §7539(c).
56 Bus. & Prof. Code §7521.5
57 See Bus. & Prof. Code §7522.
58 Kennard v. Rosenberg, 127 Cal. App. 2d 340 (1954).
59 Id. at 344-45.
60 Mason v. Peaslee, 173 Cal. App. 2d 587 (1959).
61 Id. at 591.
62 Id. at 592.
63 Bus. & Prof. Code §§1625, 1626 (emphasis added).
64 A defendant is liable for silence only when there is 1) a fiduciary
relationship giving rise to a duty to disclose, 2) knowledge of material
facts to which the plaintiff had no access, or 3) active concealment
of material facts. See, e.g., Cooper v. Jevne, 56 Cal. App. 3d 860,
874 (1976); Border v. McClung, 93 Cal. App. 2d 692, 697 (1949); Marine
Corp. v. Superior Court, 52 Cal. App. 3d 30, 37 (1975).
65 See, e.g., Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App.
3d 1324, 1332 (1986).
66 Civ. Code §1709. See also Agnew v. Parks, 172 Cal. App. 2d 756, 768
67 Conversely, if the PIA confers a privilege against discovery, then
presumably unlicensed persons would not enjoy that privilege. To date,
neither the PIA nor case law interpreting the PIA provides licensed
investigators with this privilege. See text, infra, and Flynn v. Superior
Court, 57 Cal. App. 4th 990, 993-94 (1997).
reading this article and answering the accompanying test questions,
you can earn one MCLE ethics credit.