Gathering Information

by Will Newman

Lawyers have a duty to ensure that the statements they make are true and to present evidence in support of their clients cases. Carrying out that duty often requires lawyers to investigate facts themselves. Over time, many develop the ability to gather an impressive amount of information. But an attorney also faces limits of what they can possibly and ethically learn. So I decided to share some thoughts on what lawyers can and cannot do in gathering information.

Why should you read this post about gathering information?

  • You want to know the part of my job where I feel like an investigative reporter.

  • You want some links to databases and professional responsibility rules that you could probably just Google.

  • You are gathering information about gathering information.

Image credit: https://en.wikipedia.org/wiki/Magnification#/media/File:Magnifying_glass2.jpg

Online Databases

The first place I often go for information about a case is the client herself, asking what details she knows already. Immediately afterwards I go online.

Google is a great place to start. I search it for information about my adversary and details about all of the key facts in the case.

Next, I search corporate entity databases to learn the proper name of the business entities involved and where they are registered. Every state has a Department of State or similar organization that maintains a database of each of the businesses registered in the state. Here is the New York database and here is the Delaware one, which looks like this:

I may also search e-filing websites, like NYSCEF or PACER, to see if there have been any lawsuits filed by or against any of the relevant parties. The filings in those cases may provide helpful or interesting details.

There are also other databases that have public records, like people’s names and property ownership, that may contain important information that is useful in evaluating a claim or potential defendant. Lexis has such a database.

Private Investigators and Record Requests

Next, individuals can gather information that isn’t available online. I sometimes work with private investigators who call and meet with people to learn more about the subjects of an investigation. And sometimes I do this work myself, picking up the phone or writing emails, contacting people who may have helpful information.

I also sometimes make requests pursuant to the Freedom of Information Act (or, in New York, the Freedom of information Law) that (after waiting awhile) provides me with documents related to some government activity.

Ethical Limits

A lawyer’s need to zealously advocate for her client does not permit her to do anything to get the evidence she wants. Instead, there are ethical limits to an attorney’s efforts to gather information.

Many rules of professional conduct prevent lawyers from lying to third parties while representing a client. Examples include Rule 4.1(a) in California and Rule 4.1 in New York. So, for example, a lawyer cannot ask for information while pretending to need it for some other reason. Nor can they call someone and pretend to be someone else.

Lawyers must also be concerned about whether the evidence they gather will be admissible in court. Someone needs to testify about the authenticity of the evidence, so stolen evidence may not be useful if no one can testify about how it was obtained without incriminating themselves.

Litigation law