Is this ethical, is it right?

It may interest you to know that one of the bylaws of the International High Technology Crime Investigation Association (HTCIA) states that members "may not, by virtue of their employment be in a position to represent or assist the defense in a criminal prosecution, unless…" (a few exceptions are listed).

This is a hotly-debated topic. A few days ago we discussed this very subject at the monthly meeting of the Atlanta, Georgia (USA) chapter of the HTCIA. It was opined that the defense restriction was written back when the HTCIA membership was mainly comprised of law-enforcement. These days, our members are most often employed in corporate information security positions.

My personal belief is that this restriction is now quite archaic and may serve to deprive the accused of an effective defense. Indeed, just this past week, citing this restriction on HTCIA members, I declined a request by a member of the defense team of a man accused of possessing CP to perform a digital forensics exam of his PC in their hopes of my finding exculpatory evidence.

Is this ethical?

Law firms offer e-Discovery recovery service. They (essentiall) offer "find an expert to side with you" services. Forensics would be just another product line to them.

why can't forensic firms create their own law firm?

If we were (or hired people who were) licensed by the state bar, why not?

But why would we want to?

So help me out. What about the situation bothers you? You might see something I don't.

I am not sure it is a good idea experts or forensic firms start legal firms or practice in that bificated capacity.

It is not clear though how joining with a law firm maintains the standard Independent, Objective and Impartial.

I am not against progress..but this joining between law firms and forensic firms to create an entity is largely a new "thing" for the UK.

We need to understand what this "thing" is and its impact on the forensic profession as a whole.

I can well understand those who might think this is a good idea and no doubt there will be those who could outline the benefits. But take some worst case scenarios

- The forensic firm who does the law firms bidding such that neither will disagree with each other. Claiming to have an insurance to cover this type of bad-practice wont put right the wrong that has been done in addition to the damage it can do to the forensic profession as a whole.

- What about the limited number of law firms in the UK who actually deal with technology evidence. If several forensic firms attempt to monopolise come along and dominate the market this could lead to restratint of trade.

This is not to say this will happen and my comments are not personal about the people who form these alliances. But when a "thing" like this comes along it is important to prod the "thing" and find out whether is of benefit or dangerous and what impact it has on professional, and yes, ethical standards.

trewmte, thank you. I think I understand your concerns much better now.

AWTLPI and ddow thank you for both your replies.

Should solicitors firms be getting into bed with forensic firms and offering forensic technology services?

Is this ethical?

If that is indeed the case why can't forensic firms create their own law firm?

http//www.burtonsdigital.com/?gclid=CPTl_p-S7o8CFQJuMAod-3AwIA

Could this potentailly lead to restraint of trade for independent firms?

Just to throw in my 2c worth )

Personally I dont really see anything wrong in this ?

Some on the other side of the fence might ask the question 'Is it right for Police forces to have their own Forensic Units ? ' or should they all be independent ?

At least this company are upfront about what they are doing.

In my experience there is more to worry about from 'so called' independent experts who are 'in bed' with firms of defence solicitors and who despite being 'independent' will work exclusively on defence cases….. are these really independent and impartial ??

If a forensic firm wanted to, Im sure they could start a law firm (after taking the correct steps)

Cheers

Mark

Mark, I see where you are coming from. My comments are not aimed at one individual/company but are removed from that level and focussing on the impact on ethical, integrity and profressional standards.

Some on the other side of the fence might ask the question 'Is it right for Police forces to have their own Forensic Units ? ' or should they all be independent ?

Fair point.

I am still of the school of thought though that if the police are denied the skillsets necessary to understand the crimes and investigate them then they could be held to ransom by those who are less than honest.

Equally, statutory provisions governing the police provide some protection.

At least this company are upfront about what they are doing.

In my experience there is more to worry about from 'so called' independent experts who are 'in bed' with firms of defence solicitors and who despite being 'independent' will work exclusively on defence cases….. are these really independent and impartial ??

Yes the company was upfront. But isn't your point partially contradictary? If they are upfront and in bed with a defence solicitor through an entity then how are they going to do prosecution work. The art of Independent Objective and Impartial is to stand alone and work for both sides without links (financial or otherwise) to anyone else.

The same applies to out-sourcers processing police work under contract and working for the defence at the same time. As one defence solicitor bitterly complained recently the out-sourcer they had engaged knew but failed to notify the defence that whilst working for the defence they were working for the police in the same case at the same time.

These are examples of what can happen.

In summary, I don't think there is an issue from an ethical point of view as the duty is always to the court. Also any deviation in integrity and professional standards would quickly stand out under scrutiny in open court or as a result of inappropriate or misguided advice given by lawyers based on a biased report.

Complete rambling comments below D

Computer Forensic examiners, whether true expert witnesses or 'witness of fact' pseudo expert witnesses (a distinction conveniently ignored by many courts) have a duty to the court and not to the person instructing them. This is clearly stated in s.33 of the Criminal Procedure Rules, one line of which states

This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.

This duty to the court is emphasised by forensic bodies such as the Council for the Registration of Forensic Practitioners who require their members to acknowledge this through their code of conduct.

Now, having done work on both sides I know that there is often a subtle difference in the kind of information that each side requires. For example, whilst the overriding aim of the examination in both cases is to provide enough objective evidence to allow the court to make an informed decision, the reality is that a prosecution report may also highlight information that could have intelligence value for an investigation, but little worth in a criminal trial. Also, with the nature of the legal system, a defence examination is often a response to a prosecution report and is quite focussed on testing both the prosecution assertions and the defendant's alibi.

Ideally the facts will become even more apparent after the two reports and the the defence lawyer will then be able to give informed advice to their client. Should there be a disagreement as to the facts or their significance it will be argued out in court by those paid to do the arguing i.e. the lawyers, NOT the examiner!

This testing of the facts does not presume that either examiner is being dishonest or deliberately subjective in the examination but acknowledges that both sides have different needs for the examination.

I am still of the school of thought though that if the police are denied the skillsets necessary to understand the crimes and investigate them then they could be held to ransom by those who are less than honest.

I'm not sure who you are implying may be 'less than honest' here. Could you elaborate? If you mean the defence examiner, then a similar argument could be made for the defence lawyers to have their own skillset in house. Either way a dishonest examiner on either side can be expected to be 'found out' in court (eventually wink ).

As one defence solicitor bitterly complained recently the out-sourcer they had engaged knew but failed to notify the defence that whilst working for the defence they were working for the police in the same case at the same time.

😯 Knowingly working both sides in the same case just seems greedy, without providing the benefit to the court. Was this a simple case or did it have multiple defendants, legal teams etc. as this could be a potential problem without being dishonest?

As some one who works in LE i can see the validity of the points raised above however i can put hand on heart and say that if I was doing an examination for an offence eg CP I would not only be looking for evidence of guilt but also any evidence that may prove innocence as well. After 20 plus years as a working detective trying to get convictions one of the hardest things I found adjusting to when I got into High Tech Crime was taking on a mantle of independence when doing examinations but the last thing I would want is for my evidence to convict an innocent person.

I would hope that even if a Forensic examiner was employed by a defence team they would be honest enough to give a fair and true version of what was found instead of just trumping up what was beneficial to the defence and forgetting about producing that which may be detrimental to their case.

From my point of view a defence team could afford to pay me what it would cost to get me to sacrifice my own personal integrity and pride in what i do. Or am I living in my own little Utopia?????