The legal profession is probably the most prolific source of work for private investigators, or enquiry agents, as they are more commonly known in the profession.
But have you ever stopped to ask to ask yourself 'Who really is the enquiry agent that I use?'
'What do I know about him and his background?', 'Is he qualified?', 'Is he regulated?', 'Is he honest?' and 'Is he even competent?"
'What would be the impact on my case or my client if the enquiry agent messed up?'
Operating in the professional services sector, all too often we assume that other firms operating in a similar arena will have the same high levels of service and regulation as ourselves.
It may come as something of a surprise, therefore, to learn that in 2011, private investigators in the British Isles are still not subject to any form of regulation or licensing whatsoever.
Whilst the concept of mandatory licensing and competency testing of investigators and surveillance operatives in the private sector was introduced by the Private Security Industry Act 2001, this was stopped in its tracks by the coalition government when the proposed regulatory body - the Security Industry Association (SIA) - was scrapped in what became known as the Bonfire of the Quangos.
There is currently nothing to prevent the extreme criminal element or someone on the Sexual Offences Register setting up shop as a private investigator and advertising or approaching you or your client for business this afternoon.
These unethical practitioners typically will have no formal training and represent high risk suppliers to legal firms and their clients with their disregard for the law.
In its report to parliament, What Price Privacy, evidence collected by the Information Commissioner pointed to a flourishing and unlawful trade in confidential personal information by unscrupulous private investigators and tracing agents.
The press – whilst probably the most high profile example - is not the only driver of this market, of course.
The report highlights many other businesses which regularly turn to private investigation firms and through them to the shadier end of the market, requesting or receiving confidential personal information that they must know or suspect has been unlawfully obtained.
It may only be exceptions on the fringes, but it is clear that insurance companies, solicitors, local authorities, finance companies and other lenders are implicated in this trade and that unethical elements of the private investigation industry appear willing to flout the law and provide the information requested.
What Price Privacy was the medium through which the Information Commissioner sought to have the maximum penalty for the Section 55 DPA offence of unlawfully obtaining, procuring or disclosing personal data increased from a £5,000 fine to a sentence of two years’ imprisonment.
Disreputable private investigators are a hot topic at the moment - for the manner in which information or evidence has been obtained; the activities of the private investigator instructed by the News of the World are widely known.
Less so are the techniques used by a cabal of unethical, dishonest enquiry agents who are prepared to disregard the law in order to secure an income.
Such techniques include breaching the Computer Misuse Act to unlawfully obtain access to confidential e-mails or other data such as passwords, in order to facilitate remote and simple access to on-line bank accounts and asset details from their victim’s computers, using a key logging device or undetectable key-logging software.
The software can be manually loaded onto the victim’s hard drive if access can be facilitated by someone such as a suspicious or litigious spouse, or even remotely by piggy backing the software onto an e-mailed Trojan.
It is possible to purchase Key-logging software very cheaply over the internet for just s few pounds.
The risks to the legal profession of unwittingly hiring unethical private investigators or using unlawfully obtained information are immense - from prejudicing the outcome of a case and harming a client’s interests, to damaging a law firm’s reputation or brand irreparably.
A failure to conduct due diligence on an enquiry agent may also, in certain circumstances, militate against a successful professional indemnity claim.
Knowingly procuring unlawfully obtained information or provably turning a blind eye could lead to a criminal prosecution.
So what can you do to carry out effective due diligence on the enquiry agent that you intend to instruct, to ensure that you are acting in the best interests of your clients and that you are providing them with a good standard of service?
The answer couldn’t be simpler but remains potentially under the radar of a significant share of the legal profession.
The Association of British Investigators is the trade association for professional investigators and the voice of the industry in the United Kingdom.
It acts as a one stop shop for due diligence when a legal firm has a need to hire a Private Investigator.
More importantly perhaps, owing to its stringent vetting of members, to include CRB checks and rigorous complaints and disciplinary procedures, it is endorsed by the Law Society of England and Wales for use by its members.
Talks are currently underway for this endorsement to be extended by the Law Societies of Scotland and Northern Ireland.
In addition all new applicants for membership of the Association are called for interview, have to provide proof of their identity, provide professional references which are verified, are required to sit an examination to test their competence, are required to hold their own policies of Professional Indemnity Insurance and to register with the Information Commissioners office and to notify that office as data controllers of the reasons for which they hold personal data.
ABI members adhere to a strict code of ethics and professional standards ensuring they are compliant with the law, competent and accountable.
Gavin Robertson is a member of the Governing Council of the ABI with responsibility for Regulation and Qualifications.