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Ethical Guidelines for Fire Investigators and Attorneys

This informative guide explores the ethical standards governing fire investigators and attorneys, with insights on maintaining integrity and truth-seeking in investigations and legal representation. It delves into the professional codes, confidentiality requirements, conflict resolution, and client consent aspects. The book highlights the importance of upholding honesty, fairness, and client interests within the legal and investigative realms. A must-read for professionals in these fields striving for ethical excellence.

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Ethical Guidelines for Fire Investigators and Attorneys

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  1. Ethics on Fire Avoiding Blow-Ups at Fire Scene Investigations Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO 64113 (816) 410-6524 Mark@CoronadoKatz.com www.CoronadoKatz.com

  2. Ethics on Fire Ethics Governing Fire Investigators Kansas Rules of Professional Conduct Three Brain Busters

  3. Caveat Emptor – They’re on the Side of Truth Ethics governing fire investigators

  4. ETHICS GOVERNING FIRE INVESTIGATORS National Fire Protection Association • NFPA 921 • Guide for Fire & Explosion Investigation • Promotes using scientific method to govern fire and explosion investigations • No specific section on ethics, BUT its purpose is to provide for the accurate determination of fire cause

  5. ETHICS GOVERNING FIRE INVESTIGATORS NFPA 921 • GOALS and PURPOSES: • Prevent future fire incidents • Reduce the loss of life and property • Duty to protect the safety and welfare of the public • Promotes systematic fire investigation

  6. ETHICS GOVERNING FIRE INVESTIGATORS National Association of Fire Investigators • Offers Courses and Certifications • CFEI (Fire & Explosions) • CFVI (Vehicle Fires) • CFII (Instructor) • Ethics Requirements • Prohibits working for, or providing information to, persons whose goals are inconsistent with an honest and unbiased investigation • Requires investigator to act as a “fact finder seeking the truth”

  7. ETHICS GOVERNING FIRE INVESTIGATORS International Association of Arson Investigators • Offers Courses and Certifications • CFI (Fire) • FIT (Investigation Technician) • MVF (Motor Vehicle Fire Endorsement) • Evidence Collection Technician • Ethics Requirements • We will avoid alliances with those whose goals are inconsistent with an honest and unbiased investigation • We are truth-seekers, protect the innocent, hold accountable those responsible, and convict the guilty

  8. ETHICS GOVERNING FIRE INVESTIGATORS Professional Codes • Professional Engineers • Hold paramount the safety, health, and welfare of the public • Private Investigators • Search for the truth • Furtherance of client’s interests

  9. ETHICS GOVERNING FIRE INVESTIGATORS By the way … • Anyone can call themselves a fire investigator • And sometimes they do • Fire investigators don’t have to follow NFPA 921 • And sometimes they don’t

  10. Caveat Emptor – We’re on the side of our client (mostly) Ethics governing ATTORNEYS

  11. ETHICS GOVERNING ATTORNEYS Kansas Rules of Professional Conduct • Rule 1.1 – Competence • Rule 1.2 – Scope • Rule 1.6 – Confidentiality • Rule 1.7 – Conflicts with Current Clients • Rule 1.9 – Duties to Former Clients • Rule 3.4 – Fairness to Opposing Clients

  12. ETHICS GOVERNING ATTORNEYS Rule 1.2 -- Scope • A lawyer shall abide by a client’s decisions • A lawyer’s representation of a client is not an endorsement of the client’s views or activities.

  13. ETHICS GOVERNING ATTORNEYS Rule 1.6 -- Confidentiality • A lawyer shall not reveal information regarding the representation of a client without the client’s informed consent.

  14. ETHICS GOVERNING ATTORNEYS Rule 1.7 – Conflicts with Current Clients • A lawyer shall not represent a client if the representation involves a conflict of interest with a current client. • What is a conflict? • Directly adverse • Significant risk of material limitation • But may represent clients with conflicts if… • lawyer’s reasonable belief in ability to provide competent and diligent representation • not prohibited by law • none of the affected clients has a claim against another of the affected clients • informed consent in writing

  15. ETHICS GOVERNING ATTORNEYS Rule 1.9 -- Duties to Former Clients • A lawyer who formerly represented a client shall not represent another in a substantially related matter in which the interests are materially adverse. • Substantially related? • Same transaction or legal dispute? • Confidential information from one case that is material in another? • Similar evidence, liability issues, scientific issues, witnesses, attorney’s knowledge of a client?

  16. ETHICS GOVERNING ATTORNEYS Clients Consent to Conflict • Is consent enough? • Current client: Not if one client will assert a claim against the other • Former Client: Not allowed to use or reveal information relating to former client • Can consent to future conflicts • Any consent can be withdrawn at any time • The Court might not allow the consent • Yost v. K Truck Lines, Inc.

  17. ETHICS GOVERNING ATTORNEYS Yost v. K Truck Lines, Inc., 2006 WL 314348 (D. Kan.) FACTS • Pickup v. Tractor-Trailer Crash • Plaintiff sues trucking company and driver for compensatory and punitive damages • Driver and company have the same insurance company and lawyer • Driver admits liability for compensatory damages TRUCKING CO. POSITIONS • Whether driver was an independent contractor or employee would be a fact issue (Pretrial Order) • Driver was employee in the course and scope (Objections to Jury Instructions) • Both defendants assert driver was an independent contractor (Limine Conference)

  18. ETHICS GOVERNING ATTORNEYS Yost v. K Truck Lines, Inc., 2006 WL 314348 (D. Kan.) DEFENSE COUNSEL’S ARGUMENT • We’ve solved the conflict! • Inconsistent positions were really just protecting alternate theories • Consulted with both clients and company admits respondeat superior • Stipulate to employee status and course and scope • TA DAAAAAAAA! THERE’S MORE • Both clients have been informed… • of the insurance coverage and amount • judgment amount over policy limit will not be covered • no coverage for punitive damages • they have the right to obtain “private” counsel • No worries…Plaintiff can’t win on punitive damages.

  19. ETHICS GOVERNING ATTORNEYS Yost v. K Truck Lines, Inc., 2006 WL 314348 (D. Kan.) THE COURT’S RULING • You still have a conflict of interest • Nice that you resolved the respondeat superior issue • The punitive damages issue still creates a conflict of interest because they are still in play • The conflict is impermissible Rule 1.7(b) • Rule 1.16 requires that you withdraw • But Rule 1.9 allows you to continue to represent one of your two clients. THERE’S MORE • If you stay in the case for one client… • you must follow Rule 1.9 • in defending the one client, you shall not use any information relating to the representation of the former client to the former client’s disadvantage • unless permitted or required under Rule 1.6 or the information is generally known • No worries…I’ll continue your trial setting from 3 days from now.

  20. ETHICS GOVERNING ATTORNEYS Rule 3.4 – Fairness to Opposing Parties • A lawyer shall not: • Unlawfully obstruct another’s access • Alter or destroy evidence • Falsify evidence • Assist another in doing so • What’s missing? • Truth-seeking • Unbiased • Protecting the innocent • Holding accountable the responsible • Convicting the guilty

  21. ETHICS GOVERNING ATTORNEYS Other legal considerations • Spoliation • Destroying, altering, or hiding evidence • Intent to prevent opposing party from discovery • Prejudice to the opposing party • Daubert (Fed. R. Evid. 702, 703, 704 and 705 and K.S.A 60-456, 457 and 458) • Qualifications • Reliability (Scientific Method) • Relevance

  22. SCENARIO 1 “I’ve got what I need. I’m done.”

  23. SCENARIO 1 “I’ve got what I need. I’m done.” • On fire scene of a $200,000 house fire • Arrive for joint scene inspection • Your fire investigator pulls you aside • What do you do? • If you’re the attorney for the claimant? • If you’re the fire investigator for a product? • If you’re the attorney for a product manufacturer? • In your cross-exam of the claimant’s investigator?

  24. SCENARIO 2 “The truth doesn’t always set your client free.”

  25. SCENARIO 2 “The truth doesn’t always set your client free.” • Your cell phone manufacturer client sends you to a joint inspection • You retain a fire investigator for the client • Your fire investigator pulls you aside • What do you… • Say to your fire investigator? • Say to the person in charge of the scene? • Tell your client (and when)? • Do when it’s time to identify an expert witness?

  26. SCENARIO 3 “Pick a client—any client.”

  27. SCENARIO 3 “Pick a client—any client.” • You are a partner in Big Firm and Big HVAC has bestowed the honor of being national counsel for its furnaces • You retain a fire investigator for the client • Your fire investigator pulls you aside • What do you … • Say to your fire investigator? • Say to the person in charge of the scene? • Tell your furnace client? • Anyone else?

  28. Questions? Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO 64113 (816) 410-6524 Mark@CoronadoKatz.com www.CoronadoKatz.com

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