Wednesday, October 6, 2010

No License Required

An investigative reporter with 30 years of experience was denied the right to renew her license from law authorities to work as a death penalty mitigation specialist. An administrative law judge concluded that her work did not require her to have a license as a private investigator. The South Carolina Court of Appeals affirmed the decision.

The facts:

In 2001, following a thirty-year career as an investigative reporter covering high profile stories and court cases, O'Shea began working as a death penalty mitigation specialist.  Based on advice that a professional license would be a good credential for obtaining work in her new field, she applied to SLED [South Carolina Law Enforcement Division]for a private investigator's license.

Currently, there are about six individuals doing death penalty mitigation work, four or five of which are licensed as private investigators.  According to O'Shea, her work as a death penalty mitigation specialist includes: compiling social histories, gathering documents and other information, interviewing family members of clients and other individuals, and analyzing the material she acquires to help attorneys for capital defendants develop strategies.  Although her work is geared toward the penalty phase of a capital case, she occasionally participates in the guilt phase.  She rarely, if ever, testifies.

O'Shea described herself as "self-employed," with death penalty mitigation work as her primary job.  She is usually contacted directly by an attorney desiring her services.  If she agrees to take the case, counsel then requests the presiding judge to appoint her.  She charges by the hour according to the fee approved by the presiding judge.  The approved fees are paid by the Office of Indigent Defense.  It is undisputed that O'Shea does not work exclusively for any one attorney or law firm.  Nevertheless, she considers herself part of each defense litigation team that uses her services.

In 2007, after she had worked as a death penalty mitigation specialist for about six years, O'Shea was unable to renew her private investigator's license because of financial problems resulting mainly from medical problems that prevented her from working.  As a result, her license lapsed on September 16, 2007.  When she was able to resume working, she did not renew her license; however, she notified SLED that she was working on only one case and was not gathering any new information.

Later, however, a SLED agent contacted O'Shea to arrange an inspection of her records, explaining this was a routine procedure that should have been done every two years.  O'Shea initially intended to comply with the request until SLED demanded access to all of her records for the past year.  O'Shea refused to comply with this demand because of the volume of paper involved.  She contacted the attorneys with whom she had worked in the past year, all of whom took the position that the files in her possession belonged to counsel and were protected by the work product doctrine.  O'Shea offered to provide invoices with names redacted, but SLED did not respond to this offer.

On October 24, 2007, O'Shea applied to renew her license.  SLED refused to authorize the renewal for several reasons, among them O'Shea's prior refusal to allow an inspection of her records.  In December 2007, O'Shea, now represented by counsel, filed this action in the ALC, seeking an order directing SLED to renew her license or, in the alternative, an order declaring that death penalty mitigation specialists were not subject to the licensure requirements that applied to private investigators.

(Mike Frisch)

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