farmerdude,
I completely agree with you! Under the new law, as I understand it, CPA doing forensics accounting, a civil engineer doing structural forensics, or in my case, an IT consultant doing computer forensics would all need to of a Private Investigator license.
I understand the need for professional requirements, but in my opinion, making someone get a license in a completely unrelated field is stretching it just a little bit.
If your interpretation is the same as many who have already read this legislation, please consider sending a response to the governor via the links below.
http//
Sincerely,
It is an interesting, and obviousy contraversial subject.
I would ask those who hold themselves out to be able to accomplish 100% of an investigation using CF, to prove their point by posting a successful civil complaint and describing how using ONLY that technique satisfied the investigative objectives.
Al
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But I am not sure of what other qualification you think need to be satisfied. I think it is really up to the attorney and what he/she thinks the needs are. If he need s the computer looked at, that be me, if he needs person followed, that be PI.
Scott,
Sometimes this typed media is difficult to understand. Sometimes it is a difference in overall investigative doctrine and philosophy. Fixing the former is not too difficult. Fixing the latter can be impossible. Accordingly, we may never agree, except to disagree. However, let me explain my thinking on this.
People do not investigate to generate revenue for investigators. They investigate to gain the intelligence they see as needed prior to deciding on a course of action. We see our mission as obtaining that intelligence. We refer to that target as the “investigative objectiveâ€.
The client or counsel lays out the investigative objective. That is spelled out clearly. If necessary, we help to clarify it, so we have a meeting of the minds.
We, not the client or counsel, then decide on the methodology, or leads or tactics that we believe to be best suited to accomplish the investigative objective. (This is one place where I believe we disagree.)
Now, as a practical matter, in private practice, this machine stops running when we run out of money. From my perspective that money is one of the tools in my toolbox. A budget is my asset to expend as I see fit. Time is another asset. If I don’t see enough time or money in the proposed assignment we decline to accept it. I demand absolute control over those expenditures and our contracts make that clear.
As I said, we leave very little up to the attorney when it comes to the leads we conduct or the tactics we employ in an investigation. We are the professionals and accept full responsibility (as well as full authority) for reaching the investigative objectives.
That does not mean that we summarily reject the leads often so freely offered by lawyers or other clients or that we necessarily disagree with the guys who are paying the bills. However if we do disagree as to approach, we evaluate the probable impact of such an approach and decide whether to go with the flow because the damage is minimal, or withdraw from the investigation. We have done both. We all know that you can give a client good advice, but you can’t always get him to take it.
Now, you are not going to get me to complain about the cost effectiveness or efficacy of CF. I am indeed a true believer.
However, CF is not the only tool in my toolbox. If a client asks for a CF Examination, I will determine from him, what he is trying to accomplish. (His investigative objective.) He may well get what he asks for, or he may get something completely different, as for example was our decision to conduct a crime scene investigation and interviews of employees on a $500,000 vandalism case we undertook yesterday.
As you can see, it would have been illegal for me to run those leads without a PI license. For me to try to stick to computer forensics (If CF did not require a PI license) would have been fraudulent and reprehensible – and in my opinion, a lot worse than trying to do a proper job without a license.
The example set forth above, involved two pieces of heavy equipment deliberately crashed together in the dead of night an isolated part of the desert miles from the nearest building or electrical service. A decision not to employ CF, at least at the outset, was obvious.
A far less cut and dry situation was encountered last year when employee defalcation at an auto dealership resulted in a 7 figure loss of used car inventory. The investigation involved the CF examination of 17 drives, record searches of DMV in two states, scores of public and private database searches, physical surveillance, interviews of present and past employees, surreptitious searches, reviews of after-hours security video, analysis of vehicle histories. Obtaining records from sensitive sources, I won’t identify her. I can’t see how we could have provided proper service to our client if our investigation was restricted to CF.
Now, I can visualize an attorney client calling you and saying, “Scott, old buddy, I need you to examine a hard drive… blah, blah…etc.).
You have to keep in mind, that many, if not most, lawyers know little about investigation. Many do not know the difference between admissibility and probative value. We have worked for some top attorneys over the years. The best ones tell you where they want to go and ask you how much of a budget you need to get there. They do not try “buy†leads or tactics.
Accordingly, be our client a lawyer or layman, we are immediately responsible for determining the investigative objective. If the tactic he requests doesn’t fit, or the timing is wrong, we point that out and hopefully supply more appropriate alternatives.
Without the PI license that GA wants you to get (or the bona fide employee-employer relationship that would also work for you in GA), you are forced to work with one hand tied behind your back.
As I see it, the PI License is not so that you can conduct CF examinations, it is so that when you hold yourself out to have the ability to conduct investigations the public gets a guy who has the ability to serve his client in any direction that the mission might require – and equally important, a guy who does not have a built in conflict of interest by being a one product store.
Al
In my mind there is a simple distinction and it is this
Mr. Kaplan, in all of your experience, have you ever been asked to testify as an expert when you have provided strictly investigative services?
I worked as a paralegal for ten years. During that time, we retained the services of numerous private investigators to do all sorts of things background checks on opposing parties and/or witnesses, skip tracing providing information on "injured" plaintiffs, etc etc etc. Not once….as in NEVER have I ever seen a PI called as anything but a fact witness. They present what they found and let the judge or jury interpret what they found.
On the other hand, during that same period, I saw only one CF examiner called as anything but an expert witness, and that was accidental. A CF examiner, a forensic accountant and/or CPA, an engineering consultant, an economist etc etc etc all review data and provide analysis. They interpret data and provide their own interpretation to a judge or jury. Mr. Kaplan, have you ever had the opposing party call another PI to dispute your investigative "findings" when you tailed a cheating spouse? Not likely. However, if you provided a forensic examination of the cheating spouse's computer, I'm fairly certain you have seen the opposing party call another CF examiner in to provide their own analysis of what you found on the computer.
While I might well hire you myself if you hold yourself out to be a Computer Expert, or a Computer Forensics Expert who can provide expert testimony on such matters in court, I would not hire anybody who equates Computer Forensics with Investigation
Todd,
Please read the foregoing. I am quoting from my own post of 04/10/06, in my response to Scott Moulton. If it is not clear that I solidly support Computer Forensic Expert Testimony, please tell me what I have to do to clarify that.
Arizona law DOES require those who make their living primarily as computer forensics "consultants" to obtain a PI license before accepting remuneration for cf consulting services.
On the other hand, those who engage in occasional cf consulting–apart from their regular, non-cf job do NOT need a PI license. Here is the evidence for this assertion
1. "'Private investigator' means a person other than an insurance adjuster or an on-duty peace officer as defined in section 1-215 who, for any consideration, engages in business or accepts employment to….ecure evidence to be used ….in the trial of civil or criminal cases and the preparation therefor." ARS § 32-2401.
2. See also the Web site for the PI licensing authority in Arizona. It states
Question …. “A question has come up repeatedly about whether forensic experts need a private investigator license. There are a number of experts in a wide range of areas who offer their services to attorneys, other private investigators and law enforcement. We’ve noted that many of them are not licensed. Those would include computers, medical, construction, fingerprints, documents, etc. How do you decide whether they need licenses? And how would someone with lots of expertise in construction ever qualify for a license since they’d never have three years of “investigative†experience?â€
Answer We need to view them on an individual basis. If they have a license in another profession, the attorney general opinion quoted above may apply. If they meet the criteria listed in Arizona Revised Statute § 32-2401 for a private investigator, they would need to obtain a private investigator license. As far as obtaining the experience necessary to qualify for a license, that could be difficult for them. One option could be for the industry to consider changing the private investigator requirements. Some members of the industry have suggested testing, or training program requirements for licensing.
3. And here's the Attorney General opinion referenced
Office of the Attorney General
State of Arizona
*1 I91-011 (R90-132)
February 13, 1991
Ronald W. Dalrymple
Executive Director
Board of Technical Registration
1951 West Camelback Road, Suite 250
Phoenix, Arizona 85015
Dear Mr. Dalrymple
You have asked our opinion on two questions relating to the licensing of professional engineers and private investigators. You first require whether an engineer who is called upon to investigate the origin of fires involving electrical apparatus, and then testify at trial as an expert witness regarding the cause and origin of fires involving electrical components, must have a private investigator's license. Next, you inquire whether a licensed private investigator who investigates a matter involving engineering must become a licensed professional engineer.
For the reasons that follow, we conclude that an engineer so engaged need not become licensed as a private investigator. We further conclude that private investigators normally need not become licensed professional engineers in order to investigate matters involving engineering.
Chapter 24 of Title 32, Arizona Revised Statutes, regulates the conduct of private investigators. A private investigator is defined in A.R.S. § 32- 2401(7), which provides in pertinent part
"Private investigator" means a person … who, for any consideration, 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
(d) The cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or property.
(e) Securing evidence to be used before any court, board, officer, or investigation committee.
Persons acting as private investigators are required to be licensed by A.R.S. § 32-2410, which provides
No person shall engage in a business regulated by this chapter, act or assume to act as, or represent himself to be a licensee unless he is licensed under this chapter, and no person shall falsely represent that he is employed by a licensee.
Chapter 1 of Title 32, Arizona Revised Statutes, regulates the business of professional engineering. A professional engineer is defined by A.R.S. § 32-101, which provides in pertinent part
"Engineering practice" means any professional service or creative work requiring engineering education, training and experience and the application of special knowledge of the mathematical, physical and engineering sciences to such professional services or creative work as consultation, research investigation, [or] evaluation…. A person shall be deemed to be practicing or offering to practice engineering if he practices any branch of the profession of engineering, or holds himself out as able to perform or does perform any engineering service or other service or recognized by educational authorities as engineering….
Persons acting as engineers are required to be licensed by A.R.S. § 32-121, which provides
*2 A person desiring to practice the profession of architecture, assaying, engineering, geology, landscape architecture, or land surveying shall first secure a certificate of registration and shall comply with all the conditions prescribed in this chapter.
The intent of the private investigator licensing requirement was not to limit the ability of engineers to engage in their profession. A.R.S. § 32-101 provides that consultation, research investigation and evaluation are all part of the practice of engineering. An interpretation of A.R.S. § 32-2410 that would require all engineers to become licensed private investigators in order to take the measurements and make the calculations necessary to practice their profession could not have been intended by the Legislature.
The rules of statutory construction support this interpretation of the statutes. Where the language of a statute is susceptible to several interpretations, a court will adopt that which is reasonable and avoids contradictions or absurdities. State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 331 (1963). If a literal interpretation of the language leads to a result which produces an absurdity, the act must be construed so that it is a reasonable and workable law. City of Phoenix v. Superior Court, 101 Ariz. 265, 267, 419 P.2d 49, 51 (1966).
The precise legal issue of whether engineers must be licensed as private investigators in order to gather the information incidental to rendering a professional opinion has been dealt with by other courts in this circuit. Directly on point is Kennard v. Rosenberg, 127 Cal.App.2d 340, 273 P.2d 839 (1954). In that case, experienced chemists were retained as consultants to assist a litigant in pursuing his case. In performing their duties, the chemists "examined the premises, consulted with [defendant's attorney] and the defendant, made many tests, took samples from the premises, examined photographs, conducted experiments in their laboratories and on the premises, and prepared many exhibits for use in court". Id. at 840-841. The experts then testified at the defendant's trial.
The court held that the California statute requiring licensing of private investigators did not apply in this case. The statute involved in Kennard is nearly identical to Arizona's licensing law. [FN1]
The court held "It seems quite clear that the private detective license law was not intended by the Legislature to place a limitation on the right of professional engineers to make chemical tests, conduct experiments and to testify in court as to the results thereof." Id. at 841.
This same line of reasoning was followed in Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (1969).
In our opinion, engineers who are retained as expert witnesses, or as consultants, or who are otherwise called upon in the course of their professional duties to make tests, conduct experiments, take samples and examine evidence are not engaged in the business of private investigation, and need not be licensed as private investigators.
*3 In your second inquiry you have requested our opinion concerning whether a licensed private investigator who investigates a matter involving the engineering sciences is in violation of state law if he or she is not a registered professional engineer. We conclude that private investigators normally need not be so registered.
A.R.S. § 34-2401 provides that investigation for the purpose of obtaining information with reference to the cause or responsibility for fires, libels, losses, accidents or damage or injury to persons or property is all part of the practice of private investigation. In order to complete an investigation, an investigator must necessarily take measurements, interview witnesses and gather evidence. Applying A.R.S. § 32-121 to this type of work would necessitate that all private investigators investigating matters which touch upon, for example, the engineering sciences, would have to become licensed professional engineers. We conclude that this the Legislature did not intend this when it enacted A.R.S. § 32-121.
As outlined above, only licensed professional engineers are qualified to provide services for which engineering education, training and experience are required. So long as an investigator refrains from performing services which would require the special knowledge of a professional engineer, an investigator investigating a matter involving engineering science is not required to become a licensed professional engineer.
Sincerely,
GRANT WOODS
Attorney General
[FN1]. The California Private Detective License Law in effect at the time of the Kennard ruling read as follows
A private investigator within the meaning of this chapter is a person other than an insurance adjuster who, 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 * * * the cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property; or securing evidence to be used before any court, board, officer, or investigating committee.
Id. at 841 (citing the California Business and Professions Code, § 7521).
1991 Ariz. Op. Atty. Gen. 37, Ariz. Op. Atty. Gen. No. I91-011, 1991 WL 488332 (Ariz.A.G.)
END OF DOCUMENT
***********
I think that makes it pretty clear.
Sharpie
Sharpie,
Thanks for the post. I find this whole discussion fascinating.
Here's a question/comment Based on the statement
"A private investigator within the meaning of this chapter is a person other than an insurance adjuster who, 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 * * * the cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property; or securing evidence to be used before any court, board, officer, or investigating committee. "
I would think that forensic accountants would have to be PIs as well? They certainly secure evidence to be used in court and perform investigations.
IMHO, if they are going to require PI licensing for CF work, I'm in favor of a federal PI license. This whole idea of getting licensed in every state where you might do a simple hard drive duplication could get quite expensive.
My $0.02.
TVD
PI licensing at the federal level would be one way around the obstacle.
Attorneys and other professionals often encounter the same problem. For example, an attorney who creates an Arizona trust for a client with property in multiple states is faced with the problem of how to transfer such property "into" the trust. That is, an attorney who is licensed to practice law only in the state of Arizona cannot simply draft a deed to transfer California real estate into that trust. That's because (I believe) to do so would be "practicing law" in the state of California–something which we stipulated our AZ atty is not licensed to do.
For this reason, our hypothetical attorney would need to retain a California attorney to draft the deed in order to complete services for the client. This of course raises costs for the client and hassle for the AZ atty.
So wouldn't it just be easier for attorneys to be licensed at the federal level? Yes, it would, but it may not be a good idea. Further, even if it were, the lobbying power against such a move would be immense.
Also, remember the economic of the situation. Professional licensing (I think) tends to raise wages, so licensing of cf professionals may not be so bad. Do you think attys would make so much money if anyone could do it without a license? I think not.
Sharpie
I suppose that if a puter forensics analyst has to be a PI, then they also have the right to do all the other stuff a PI can do for hire, right? And if there is no differentiation between a computer examiner and a PI, then a PI has a right to perform computer examiner work for hire.
Seems to me that a PI and a computer forensics expert are two very different things. One can be both but being one does not qualify you to be the other.
Its just more government "Nanny State" intervention. The open market would quickly eliminate practitioners with bad reputations.
Al, the "OldDawg" moniker refers to myself, not my dawgs. In fact, it sounds like my 85lb Labrador would have a blast retrieving your zebra striped doggies.