Liability of an Attorney or Spouse
for Torts Committed by a Private Detective
Laura W. Morgan
Private detective, private eye, P.I., dick, gumshoe, peeper,
tec, shamus, eavesdropper, delator, sleuth: whatever the name,
they are paid to pry. Consequently, in the course of their
investigations, private detectives sometimes go too far and
commit various torts, such as defamation, invasion of privacy,
trespass, and intentional or negligent infliction of emotional
distress. This article will discuss the liability of an attorney
or spouse who hires a private detective during the course
of divorce proceedings for the torts of the private detective.
By way of background, there is general agreement that an
unreasonably intrusive investigation by a private
detective hired by a litigants attorney gives rise to
tort liability on the part of the detective. Noble v.
Sears Roebuck & Co., 33 Cal. App. 3d 654, 109 Cal.
Rptr. 269 (1973); Tucker v. American Employers Insurance
Company, 171 So. 2d 437 (Fla. DCA 1965); Pinkerton
National Detective Agency, Inc. v. Stevens, 108 Ga. App.
159, 132 S.E.2d 119 (1963); Souder v. Pendleton Detectives,
88 So. 2d 716 (La. Ct. App. 1956); Miller v. Brooks,
472 S.E.2d 350 (N.C. App. 1996), discretionary review
denied, 483 S.E.2d 172 (N.C. 1997); see Restatement
(Second) of Torts § 652B, comment b, illustration
2 (1977) (invasion of privacy would occur if private investigator,
seeking evidence for use in a lawsuit, looks into plaintiffs
bedroom window with telescope for two weeks and takes intimate
One who hires a private detective will be held liable for
the torts of the detective if the employer exercises control
over the detective, or if the private detective commits an
intentional, not negligent, tort within the scope of the employment.
This was stated in United States Shoe Corporation v. Jones,
et al., 149 Ga. App. 595, 55 S.E.2d 73 (1979):
Casual Corner contends that it was insulated from liability
as a matter of law because the guard was acting in the status
of an independent contractor. See Code §§ 105-501,
105-502. However, even assuming arguendo that the evidence
would authorize the store to claim such a status as a matter
of law, this would not afford it a defense to the plaintiffs
claim. Even though hirers of an independent security
or protective agency have generally been held not liable
for negligent torts of agency personnel, where the hirer
did not exercise control over them, hirers have been held
liable for the intentional torts of the agencys personnel
committed, in the scope of the agencys employment,
against the hirers invitees. Noble v. Sears
Roebuck & Co., 33 Cal. App. 3d 654 (73 ALR3d 1164)
(1973). See Annot., Liability of One Hiring
Private Investigator, 73 ALR3d 1175. This principle
appears to have been followed in Ellenburg v. Pinkertons,
Inc., 125 Ga. App. 648 (188 S.E.2d 911) (1972), where
the employer of a private detective agency was held liable
to a third person for an invasion of privacy committed during
the course of an investigation by the agencys personnel,
despite the fact that the agency was employed as an independent
contractor. Accord, Greenbaum v. Brooks,
110 Ga. App. 661 (2) (139 S.E.2d 432) (1964). See also
McLeod v. Dean, 270 F. Supp. 855 (DCNY 1967). We accordingly
hold that the trial court acted properly in refusing to
direct a verdict or to grant judgment notwithstanding the
verdict to Casual Corner based on the independent-contractor
Accord Adams v. F.W. Woolworth Co., 257
N.Y.S. 776, 781 (N.Y. App. Div. 1932) (A store owner
who places a detective agency on his premises for the purpose
of protecting his property by various means, including arrests,
should not be immune from responsibility to an innocent victim
of a false arrest made by the detective agency, even as an
These same principles were applied to an attorney. Thus,
whether the attorney who hires the private detective will
be held liable for the torts of the private detective generally
depends on whether the attorney exercises independent control
over the detective. Further, even if the attorney does not
exercise independent control over the detective, the attorney
will be held liable for the intentional, though not negligent,
torts of the detective that are committed in the scope of
the detectives employment. This was stated in The
Committee on Legal Ethics of the West Virginia State Bar v.
Dean E. Lewis, 156 W. Va. 809, 197 S.E.2d 312 (1973):
An attorney, of course, is responsible for the conduct
of his investigator in such circumstances when such investigator
is conducting his affairs either with the explicit or implicit
knowledge of the attorney. In re Mahan, 228 App.
Div. 241, 239 N.Y.S. 392; In re Levine, 210 App.
Div. 8, 205 N.Y.S. 589. In view of the long-standing relationship
and unquestionable control over the working procedures of
the investigator by the attorney, and reviewing all the
circumstances of this case, there is sufficient inference
of agreed agency to hold the attorney responsible for any
action on the part of the investigator.
197 S.E.2d at 316.
An attorney may also be liable for the torts of the detective
he or she hires on an independent basis of liability: negligent
hiring, negligent supervision, or negligent entrustment. Restatement
(Second) of Agency § 213 (1958). Noble v. Sears
Roebuck & Co., 33 Cal. App. 3d 654, 109 Cal. Rptr.
The courts have generally held that a private investigator
in the employ of an attorney cannot be liable for defamation
in the course of his/her investigation of a litigant. The
courts have reasoned that because the employer/attorney is
immune from a defamation suit brought by a litigant on the
basis of the litigation privilege, the attorneys employee/agent
is also immune. Conversely, if the employee/agent is immune,
then the attorney is immune for the defamatory statements
of the employee/agent. The attorneys liability, if any,
will stem not from vicarious liability for the defamation,
but for negligent supervision.
This principle was stated in Hawkins v. Harris,
141 N.J. 207, 661 A.2d 284 (1995). In this case, the court
noted that the litigation privilege extends to those who aide
an attorney in the course of legal proceedings. See,
e.g., Silberg v. Anderson, 50 Cal. 3d 205,
786 P.2d 365, 266 Cal. Rptr. 638 (1990). Thus, the court held,
the privilege should extend to the relevant statements an
investigator has made in the course of pretrial discovery.
To protect from investigator abuse, the courts may impose
sanctions on parties for an abuse of the discovery process,
and the detective will be subject to state licensure procedures.
Finally, an attorney may be held professionally responsible
for a lack of supervision of such investigators.
Other courts have not gone as far as the New Jersey court.
For example, long ago, the New York court in Youmans v.
Smith, 47 N.E. 265, 267 (N.Y. 1897), acknowledged that
that the privilege that protected [the attorney] also
protected his agents and employees in whatever they did at
his request that he could have lawfully done himself.
However, the fact that investigators may aid attorneys in
preparing a case does not justify extending an unqualified
and absolute privilege to investigators for statements made
in the course of investigations. Rather, the court must examine
whether the investigators statements were reasonable
in light of the circumstances of the case.
Another point that should be stressed is that these two
cases clearly discuss defamatory statements made by an investigator
during the court of legal proceedings. In the divorce context,
this may pose a problem. It is possible that a husband or
wife might hire a private detective in order to determine
if his or her spouse is committing adultery before any action
for divorce is filed. It is the investigation itself that
will give rise to the legal proceedings. In this event, it
is possible that a spouse or attorney who hires an investigator
before the divorce is filed may face liability.
Invasion of Privacy
Restatement (Second) of Torts § 652B, comment
b, illustration 2 (1977), notes that an invasion of privacy
would occur if a private investigator, seeking evidence for
use in a lawsuit, looked into the plaintiffs bedroom
window with telescope for two weeks and took intimate photographs.
See Sharp v. Sharp, 209 So.2d 245 (Fla.
2d DCA 1968).
While this statement seems obvious, doubt has been case
on its continued vitality in light of the recent case Plaxico
v. Michael, 735 So. 2d 1036 (Miss. 1999). In this case,
a womans ex-husband, seeking evidence for modification
of child custody, hid in the bushes and took pictures of his
ex-wife, clothed, and his ex-wifes lesbian partner,
semi-nude, through the bedroom window with a telephoto lens.
The majority held that because the husband was motivated by
a belief that it was not in his daughters best interests
to live in his ex-wifes home with a (gasp!) lesbian
partner, and that most reasonable people would
agree with the husband that his actions were warranted, the
ex-wifes tort claim lacked an essential element: outrageous
Three pictures were actually developed which were of Plaxico
[the ex-wifes partner] in a naked state from her waist
up in her bed. Michael believed that he took these pictures
for the sole purpose to protect his minor child. Although
these actions were done without Plaxicos consent,
this conduct is not highly offensive to the ordinary person
which would cause the reasonable person to object. In fact,
most people would fee Michaels actions were justified
in order to protect the welfare of his minor child.
735 So. 2d at 1040. It is apparently the law in Mississippi
that no reasonable person could believe that the ends do not
justify the means, no matter how intrusive, when child custody
is at stake.
Consequently, if a person litigating a child custody case
can not be held liable for invasion of privacy or intrusion
into the seclusion of another, then his or her agent, an attorney
or private detective, cannot also be held liable. At least
One hiring a detective can be held liable for trespass by
a detective. This was the case in King v. Loessin,
572 S.W.2d 87 (Tex. Civ. App. 1978). In that case, Delcer
King contracted with Smith Detective Services to investigate
his competitors. Smiths employee, Thompson, along with
another employee, burglarized the offices of Lawrence Loessin.
Of significance to the trial court was that when King hired
Smith, he said that he didnt particularly care how he
went about his investigation and that money was no object
in getting the evidence; King implied that he would support
criminal activity. This led to the court to conclude that
a person who contracts with another to perform a service that
is unlawful in itself, even as an independent contractor,
is liable for damages for the unlawful act. 572 S.W.2d at
Thus, if an attorney or spouse hires a private detective
with the instructions, Get the good on my spouse, and
I dont care how you do it, the attorney or spouse
may well be liable for the torts committed by the detective.
The Restatement (Second) of Torts § 700 provides
that a parent who intentionally interferes with the parental
rights of the other parent is liable in tort. See generally
Leonard Karp & Cheryl Karp, Domestic Torts §§
5.03-5.04 (1989 & Supp. 1999). Thus, one who assists a
parent in taking exclusive possession of a child in contravention
of the rights of the other parent may be criminally or civilly
liable. See generally Annotation, Kidnapping
or Related Offense by Taking or Removing of Child by or Under
Authority of Parent or One in Loco Parentis, 20 A.L.R.4th
823 (1983 & Supp. 1999).
An attorney or spouse may be liable for the acts of a private
detective who assists a parent kidnapping his or her own child
when the private detective is hired by the attorney or spouse.
For example, in State v. Stocksdale, 138 N.J. Super.
312, 350 A.2d 539 (1975), the mother brought the child to
her parents home. The father hired a private investigator
who then acted as a decoy at the front door of the maternal
grandparents while he, the father, slipped in the back and
took the child. The court held in light of the prosecutions
unwillingness to proceed with kidnapping charges, it could
go no further. The court further opined, however, that the
private investigator and the father could together be charged
with conspiracy to kidnap, and public policy mandated against
a holding which would encourage or support the movement across
state lines of people engaged in the business of resolving
custody disputes by child snatching.
Similarly, in Armes v. Campbell, 603 S.W.2d 249
(Tex. App.-El Paso 1980, no writ), the paternal grandmother
filed an action for assault and false imprisonment against
a private investigator hired by the childs mother to
locate the child and return him to her. The grandmother had
been given custody of the child by the childs father,
who had obtained custody under the divorce decree. After the
mother remarried, she wished to regain custody of her son,
and hired Jay J. Armes to find the child and bring him back
to her. The private investigators conduct constituted
assault and battery, and consequently, both the investigator
and mother were held liable.
A fascinating examination of an attorneys liability
is found in Offenhartz v. Cohen, 144 Misc. 2d 130,
543 N.Y.S.2d 867 (1989), affirmed 168 A.D.2d 268,
562 N.Y.S.2d 500 (1st Dept 1990), it was alleged that
when Sara Offenhartz was 12 years old, after her parents were
separated, Sara was with her father in New Jersey when her
mother and a private investigator hired by her mothers
attorney Jeffrey Cohen attempted forcibly to place Sara
in a car against the girls will. The investigator, it
is asserted, restrained Saras father during this episode.
It is this event which forms the nucleus of Saras complaint
against her mothers lawyer that he was behind
this assault and attempted abduction
and accordingly should pay damages in the amount of $10 million.
The court determined that because Saras mother had the
right to custody, she had the right, through her agents, to
go get Sara and have her placed in a car to be brought back
to New York. The court further concluded, New York law
does not recognize any liability on the part of an attorney
to a non-client third party for injuries sustained as a result
of any attorneys actions in representing his client
absent fraud, collusion, or a malicious or tortious act
(see Michalic v. Klat, 128 A.D.2d 505, 506). As I
concluded above, the allegations fail to state any tort claim,
and while the now-adult plaintiff still clearly believes that
the claimed abduction was malicious, it is clear
that the facts do not objectively state any cause of action
as against the attorney based upon advice he allegedly gave
In essence, the claim of kidnapping against the private
investigator, and therefore against the attorney or spouse,
will rise or fall on whether the parent has a right to the
custody of the child.
Intentional Infliction of Emotional
The very act of hiring a private investigator was found
to be part of a pattern of intentional infliction of emotion
distress in Behringer v. Behringer, 884 S.W.2d 839,
844 (Tex. App.Fort Worth 1994, writ denied).
In that case, the wife admitted to hiring two or three private
investigators on her own accord and another through a former
attorney. The court noted that while the hiring of a private
investigator may not be uncommon during a period of marital
discord, the husbands experience of being trailed by
strangers must be viewed in context with Margarets
repeated death threats. The court ultimately held the
wife liable for intentional infliction of emotional distress.
Negligent Hiring or Supervision
The previous sections have considered the vicarious liability
of the attorney or spouse who hires the private detective.
As noted in the introduction, however, an attorney can be
held independently liable for the negligent hiring or supervision
of a private detective. Noble v. Sears Roebuck & Co.,
33 Cal. App. 3d 654, 109 Cal. Rptr. 29 (1973). See generally
1 Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice
§ 5.10 (4th ed. 1996). Thus, if an attorney
hires a private investigator with a known record for illegal
or tortious activity, liability can be imposed on the attorney
for negligent hiring or supervision.
Most private detectives go about their business in a professional
manner. Gone are the days when a private detective who engaged
in matrimonial work was held in low esteem. Even
Spenser and V.I. Warshavsky have seen fit to engage in divorce
work these days. Nonetheless, the possibility exists that
a private detective will pursue the investigation too zealously,
resulting in tort liability. So long as the attorney has diligently
supervised the case and made the objective clear, including
that the investigation be done in a lawful manner, liability
on the part of the attorney appears to be a slim possibility.