In one of their first phone calls, the lawyer and his private investigator outlined in no uncertain terms one ground rule: Their discussions were to be strictly confidential.
“The conversations are just between you and I,” the private eye tells the attorney.
“Right,” the attorney says.
“Period,” the private eye adds.
In the end, however, their conversations were anything but confidential. That phone call and dozens of other recordings were played in federal court in Los Angeles this month, where the attorney, Terry Christensen, and the private detective, Anthony Pellicano, are on trial for allegedly conspiring to wiretap the former wife of billionaire Kirk Kerkorian.
Because Pellicano was a well-known sleuth-to-the-stars, with clients such as comedian Chris Rock and actor Tom Cruise, his legal troubles have generated interest in Hollywood circles. But his current trial is also being closely followed by Los Angeles’ legal community because it thrusts into the limelight a type of relationship the public rarely sees: that of a lawyer and his private investigator.
According to prosecutors, Christensen paid Pellicano to illegally wiretap Lisa Bonder Kerkorian, who was engaged in a bitter child-support battle with his billionaire client Kirk Kerkorian. Christensen then used information gleaned from the wiretap to gain a legal advantage in the case, prosecutors allege. The key evidence in the case is 6 1/2 hours of secretly recorded phone conversations between Pellicano and Christensen. In the conversations, prosecutors allege, the pair deliberately avoided discussing how Pellicano was getting his information and used code words to refer to the wiretap.
Christensen’s defense team contends the attorney knew of no illegal wiretap, arguing that Pellicano could have been getting his information from sources other than a wiretap, including from the hired help at Bonder Kerkorian’s house.
Some attorneys in recent weeks have said the charges against Christensen have made them more cautious about whom they hire and how they obtain their information.
“No case is worth your career,” said Ron Litz, who often deals with vicious divorce or child custody battles in which vengeful clients want to go after their spouses by any possible means. “Now that we know that lawyers are going to be prosecuted for it like Terry Christensen, we know that we have to keep that in mind and be more careful than in the past.”
The National Law Journal, a legal publication for attorneys, in an article earlier this year called Christensen’s case a “wake-up call” for lawyers on how they use private investigators.
Lawyers say they take a generally hands-off approach when it comes to how investigators do their work. Some attorneys specify in their contracts or letters of authorization that the investigator’s work should be in accordance with state and federal laws, but most operate under a basic assumption, or trust, that the investigator won’t get them into trouble, attorneys and investigators said.
A lawyer can be held criminally liable for his investigator’s conduct only if he had knowledge of the illegal acts and acted with the intent of committing a crime, said Steven Gruel, a former federal prosecutor who lectures on criminal law to private, state and federal investigators. Gruel represented Pellicano before the private eye chose to defend himself in court.
But the lawyer could also be criminally charged if he deliberately turned a blind eye to tell-tale signs that improper acts were occurring, attorneys said.
John Nazarian, a private investigator who has been occasionally observing and blogging about the Christensen trial, said attorneys are starting to ask more questions and are becoming more specific in their requests for information.
“They would normally call you and say, ‘I need A, B and C.’ Now, it’s ‘I need A, B and C, and I need you to keep it on the up and up,’ ” he said. “They’ll say, ‘I want this all done legally, and I want no wink-winks.’ ”
Stephen Kolodny, a prominent divorce lawyer who represented Bonder Kerkorian in the child support matter and testified for the prosecution in the Christensen case, said lawyers who are ethical would not be overly affected by the trial.
“Maybe it makes them a little more conscious in their instructions to investigators to make sure they observe the law,” he said.
But Christensen’s case may leave a long-lasting impression with the public because it reinforces the mysterious, negative image of private investigators in popular culture, some attorneys said.
Erwin Chemerinsky, an expert on legal ethics, said the charges Christensen faces are serious allegations for a lawyer because they undermine the foundational rules of the court system. “The adversary system is based on notions of fair play, and I think what makes this of such great concern is the spying, if it did happen in this way, is so inconsistent with that basic rule,” said Chemerinsky, dean of the UC Irvine School of Law.
Pellicano, who was convicted in May of racketeering, wire fraud and other crimes, has little at stake in the current trial because two additional counts to his 76 convictions will have a negligible effect on his sentence, whereas Christensen has his career, reputation and a potential prison sentence at stake, experts said.
Whatever the outcome of the trial, attorneys said the demand for aggressive private eyes would not die down as long as high-stakes litigation exists involving well-heeled clients willing to pay for an edge in bitter court fights where egos and large sums of money are at stake.
“Everybody scurries and becomes much more careful, then eventually with time, people forget,” said entertainment attorney Eric Weissman.
Nazarian, the investigator, said he has to bring his clients down to reality, advising them of what he can do for them within legal limits. “Obviously, I don’t want to go to jail, and I want to keep my lawyers and clients out of jail. That’s always in the back of my mind.”
The rich and powerful will always want someone’s head on the table, he said.
“They don’t care how it gets there.”