Can a lawyer also run a private investigation business, and what duties carry over from the lawyer role?

Plain-English summary

A lawyer asked about the issues raised by conducting dual professions as a lawyer and as a private investigator. The committee was of the opinion that there would be no violation of RPC 3.7 if the lawyer were called to testify in a case in which he was acting solely as an investigator, and that RPC 7.5 (trade names) would not apply to the investigation business.

The committee said operating the two businesses would not violate the Rules of Professional Conduct, but noted that when a client hired the lawyer as an investigator, the lawyer should advise the client that he is not acting as a lawyer and that the confidences and secrets normally attending the client-lawyer relationship would not apply. If the lawyer represented a client as an investigator and as a lawyer in successive cases, the disclosure and consent requirements of RPC 1.8 would apply. RPC 7.3 would prohibit the lawyer from soliciting in person legal business from an investigation client. Finally, the committee said the Rules of Professional Conduct would generally not apply to the investigation business, except that some rules, such as RPC 8.4, would apply to it.

Currency note

This opinion was issued in 1992, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer also operate a private investigation business?

A: The committee was of the opinion that operating the two businesses would not, by itself, violate the Rules of Professional Conduct.

Q: What must the lawyer tell people who hire him as an investigator?

A: The committee said the lawyer should advise the client that he is not acting as a lawyer and that the confidences and secrets normally attending the client-lawyer relationship would not apply.

Q: Does testifying as an investigator violate the lawyer-as-witness rule?

A: The committee said there would be no violation of RPC 3.7 if the lawyer were called to testify in a case in which he was acting solely as an investigator.

Q: What if the lawyer serves the same person as investigator and then as lawyer?

A: The committee said that in successive cases the disclosure and consent requirements of RPC 1.8 would apply, and that RPC 7.3 would bar in-person solicitation of legal business from an investigation client.

Background and rules framework

The opinion applied several rules to the overlap of the two roles: RPC 1.8 (conflicts and business dealings with clients), RPC 3.7 (lawyer as witness), RPC 7.3 (solicitation), RPC 7.5 (trade names), and RPC 8.4 (misconduct), corresponding to the same-numbered ABA Model Rules. The committee treated the investigation business as largely outside the Rules of Professional Conduct, while keeping the disclosure, conflict, solicitation, and general-misconduct rules in play where the two roles intersected.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.8 (conflicts; business transactions with clients); Washington RPC 1.8
• ABA Model Rule 3.7 (lawyer as witness); Washington RPC 3.7
• ABA Model Rule 7.3 (solicitation of clients); Washington RPC 7.3
• ABA Model Rule 7.5 (firm names and trade names); Washington RPC 7.5
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4

See also

• NY State Bar Op. 886: Lawyer Investor in a Brokerage
• NY State Bar Op. 935: Public Defenders in Private Practice

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=561

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1481
Year Issued: 1992
RPC(s): RPC 1.8; 7.3; 7.5
Subject: Dual professions; lawyer also works as private investigator

The Committee reviewed your inquiry concerning issues raised by conducting dual professions as a lawyer and as a private investigator. The Committee was of the opinion that there would be no violation of RPC 3.7 if you were called to testify in a case in which you are acting solely as an investigator. Further, the Committee is of the opinion that RPC 7.5 regarding the use of trade names would not also apply to your investigation business. The Committee was also of the opinion that the operation of these two businesses would not violate the Rules of Professional Conduct, but noted that when a client hired you as an investigator, you should advise them that you are not acting as a lawyer and that the confidences and secrets normally attended to the client/lawyer relationship would not apply. Further, if you represented a client as an investigator and as a lawyer in successive cases, the requirements of RPC 1.8 regarding disclosure and consent would apply. Similarly, RPC 7.3 would prohibit you from soliciting in person legal business from an investigation client. Finally, the Rules of Professional Conduct would generally not apply to your investigation business, except that some rules, such as RPC 8.4, would apply to your investigation business.