Hiring someone for an end, without specifying the means?

Great Debates
#1

Came across this in a novel, but (a) I’m looking for a factual answer, and (b) I’m interested in maybe changing up the details, to discuss what matters — and what should matter, which is why I’m erring on the side of figuring it’s GD territory (with the tl;dr in bold at the bottom).

That said, it’s a bit from a Nero Wolfe story:

Jarrell didn’t, as it were, say that; Jarrell said, to the private eye, that: “I’m making you a proposition. The day she’s out of here, with my son staying, you get ten thousand dollars in cash … The day a divorce settles it, with my son still staying, you get fifty thousand. You personally.”

So if he finds genuine evidence of an affair, and she gets kicked out of the house and divorced, paycheck ensues; but (depending on how you read “handmade”) he could arguably make a play for that paycheck by framing her with phony evidence, or by taking it upon himself to generate some genuine evidence by seducing her.

Later (since, again, this is a Nero Wolfe story), there’s a murder; and Jarrell makes clear that, hey, you’re a private eye who can investigate stuff; and if, say, evidence turns up that she’s guilty, and she gets sentenced to death — well, in that case, every penny I offered is still yours.

And, again, that’s true if the evidence is genuine, but it’s presumably true if he tries to frame her and gets away with it. (I figure there’s even an argument to be made that he could collect if he gets away with murdering her and, say, making it look like a suicide: so long as she’s not living there any more, and the son is, then — what did Jarrell agree to? What could Jarrell agree to?)

In other words: what happens if Guy A hires Guy B on terms that boil down to “I’ll pay you $60,000 if Event X happens”, and then:

1) Guy B legally works to make it happen?

2) Guy B illegally works to make it happen — which Guy A didn’t, in so many words, request; he just specified an outcome, without saying anything in the way of means-to-an-end, and maybe he’s not sure whether Guy B broke any laws?

3) It happens; but, as far as Guy A can tell, it had nothing to do with Guy B’s efforts; maybe Guy B put in a lot of work, but maybe he didn’t? Is that relevant?

#2

What happens is that A either pays, or he doesn’t. If he pays, then what happens is that B gets money. If he doesn’t, then B could try to take him to court… but that would bring the matter to the attention of the authorities, and if it came out that B worked illegally, then the contract is against public policy and thus null and void, and certainly B and possibly also A could be facing criminal charges. People taking on illegal work are well-advised to get payment in advance, and people soliciting for illegal work are well-advised to withhold payment until delivery (and yes, that does mean that at least one party is acting ill-advisedly).

Both of these appear to be valid contracts. The latter might be construed as a bet, which might cause problems with gambling laws in some jurisdictions, but I’d guess not. Of course, A could also have offered a different contract, with payment being contingent on evidence of B’s involvement, but in this hypothetical, he didn’t.

#3

The novel recounted in the OP specified partial payment up-front and payment in full after the service has been performed. I believe we call this either plausible deniability or an ambiguous order, depending on the point of view.

~Max

#4

But that’s (a) why I wanted to play around with the details, and (b) what intrigues me: if, as you say, B takes A to court, and there’s really no dispute about whether the contract just says “if X happens”, then — what, exactly, comes to the attention of the authorities?

“Did it happen?”
“Yep.”
“…well, okay, then.”

I’ll of course grant that drawing any attention to it is probably a Very Bad Idea; but, if it did wind up in court, then what would be relevant and what irrelevant?

#5

…it’s not great form to bump one’s own thread, but I find this intriguing to the point where I’m wondering if I’m reading entirely too much into it.

Or missing something. Or whatever.

Take, say, the celebrity-college-admission story that was grabbing so many headlines not so long ago; apparently the willingness was there for rich folks who were happy to break the law, but: what happens if they’d just gone to A Guy and said, if my kid gets accepted there, you get X amount of money, and — that’s pretty much it? Maybe they’re hiring someone to tutor the kid, and steer said kid away from some extracurriculars and to others, and line up some outstanding letters of recommendation or whatever; but maybe they’re hiring a guy to bribe someone at the college or otherwise break laws; hey, who can say?

Can even the person who hired the guy say, for sure, what he was getting hired to do?

Or, if I’ve learned nothing else from TV crime shows, the cliché when a married woman dies is that the husband is Murder Suspect #1; and the other cliché from lazy TV crime writers is the guy who stands to lose half of his sky-high wealth in a divorce, plus an ongoing alimony payout. So what happens if an unscrupulous lawyer (the other other cliché in these scenarios) gets hired on terms that boil down to “I’ll pay you X if she doesn’t get more than Y in the proceedings,” and two weeks later she — dies?

Can a contract like that get drawn up, such that the guy who thereby hired the lawyer maybe can’t even say for sure whether he legally hired a hitman?

#6

If the authorities don’t find out about something, then you can get away with it. If they do find out, then first of all the contract would be considered legally void, and second of all it’d be up to a court to determine whether you were taking part in the illegal activity or not. And what they decide would depend on what they find out and what’s argued at the trial and how the jury feels about it.

I’m not sure how much more there is to say about it.

#7

What interests me is, imagine A plainly spells out to B that “if you murder C, then I’ll pay you X.” As I understand it, that’s a crime, all by itself, in itself, right there; if B is an undercover cop, or wearing a wire, or Insert Cliché Here, then A would presumably be arrested on the spot, and the recording of their chat would be obvious evidence of guilt at the trial…

…but if that doesn’t happen, and A is remarkably stupid, imagine that A then writes up a contract explaining that he’ll pay B to murder C. Which is to say: the sort of contract that could presumably secure a criminal conviction even if no harm comes to C; but, as you say, also the sort of contract that’d be legally void: if C does get murdered by B, and B produces that document when taking A to court for failing to pay up as agreed, it’d be useless for the purpose in question but useful for getting A and B locked up for a long time.

By contrast, it seems to me that a contract of this other sort — well, wouldn’t be legally void; it could be produced in court without being evidence that A or B did anything illegal. If A got recorded offering this other sort of deal to Undercover Cop B, then — what? Is that recording, in itself, evidence of a crime, or of a blandly legal transaction?

#8

I’ve lost you. This is what I understand:

Scenario 1

Alice and Bob sign a contract which specifies, if Bob murders Charlie, Alice shall pay Bob a sum of money. This contract is lawfully seized by the authorities before Bob murders Charlie. Alice and Bob are both arrested and charged with conspiracy to commit murder, and the contract is introduced as evidence in their trials.

Scenario 2

Alice and Bob sign a contract which specifies, if Bob murders Charlie, Alice shall pay Bob a sum of money. Bob murders Charlie and subsequently demands payment from Alice. Alice refuses to pay, and Bob (stupidly) files a civil suit against Alice and produces the contract. The contract is declared illegal and the civil suit is dismissed; the parties will also be arrested since the judge has probable cause to suspect them of conspiracy to commit murder, if not actual murder.

Scenario 3

Criminal informants present the police with circumstantial evidence that Alice is trying to hire a hitman to murder Charlie. Based on this information the police send Brian in undercover as a gun-for-hire to collect evidence. Alice entices Brian to sign a document which specifies that if Charlie should die within two weeks, Alice shall pay Brian a significant sum of money. A recording of the encounter is shown to a judge who determines there is probable cause that Alice committed attempted murder or criminal conspiracy. Alice is arrested and the document is seized pursuant to warrant.

The document is introduced as evidence in her trial. Alice’s defense must counter the prosecution’s theory that the document is evidence of a murder-for-hire scheme. There are a couple of possible defenses:

  • Alice may argue that the document is a formal life insurance policy, where Brian took out a policy on Charlie’s life. Brian may testify that he never paid a premium, but Alice may argue that the premium was agreed to verbally or that it is a zero-premium policy (STOLI fraud).

  • Alice may argue that the document reflects a bet on Charlie’s life. This is similar to the life insurance defense but there is no pretense of legality.

If Alice was smart, her encounter with Brian would offer support for her defense theory. Ideally the document would have specified that Brian pay Alice a smaller sum of money should Charlie survive two weeks (the disparity between Alice’s and Brian’s obligations reflects the odds of him dying). The prosecution will introduce other evidence to reinforce their murder-for-hire theory. It is ultimately up to a jury to decide if there is any reasonable doubt as to Alice’s guilt. Even if Alice wins with either defense she likely faces lesser charges for insurance fraud or illegal betting. Although irrelevant to the trial, the document is not valid and would not be enforced by any court.

~Max

#9

I’m considering your points, but I’m not sure if the following makes a difference:

Say it doesn’t snap into quite so sharp a focus. Say it’s a contract that can be fulfilled in a number of ways, only one of which involves death.

Take the example of a divorce attorney who gets hired by Alice on terms that boil down to “I’ll pay you X if Charlie doesn’t get more than Y in the proceedings.” And, while we’re at it, imagine there’s a prenup with an infidelity clause such that Charlie would get waaaay less than Y if, y’know, Charlie is found to have been unfaithful during the marriage.

I don’t think that sparks your “insurance fraud or illegal betting” problem, because nobody has to die for the attorney to legally earn X; after all, if some honest sleuthing — by the attorney, or by someone who gets paid by the attorney — proves that Charlie has been unfaithful, well, then, as far as I can tell, a paycheck is to ensue, under the terms of a legal contract.

If I’m right about that, then within that context, my question would be: what happens if the attorney — having signed that contract, but then acting on his own initiative — secretly pays someone to seduce Charlie? Or gets away with murdering Charlie, while making it look like a suicide?

Or whatever, so long as Alice can say “hey, this wasn’t about life insurance or a bet on Charlie’s death; I’d have paid up, just like the contract says, if Brian had found evidence of infidelity by engaging in some perfectly-legal detective work, or if he’d found another aboveboard-and-lawyerly route to victory.”

What happens then?

#10

Divorce attorneys aren’t like personal injury attorneys in this regard. Attorneys in Florida are prohibited from collecting any fee that is contingent on the outcome of divorce proceedings. Why? To discourage the unethical behavior you describe, which is surely prohibited in its own right. But legally speaking why is the attorney so prohibited?

The Florida Constitution, Article V, section 15, gives the Supreme Court of Florida the authority to discipline attorneys at law in this state.

SECTION 15. Attorneys; admission and discipline.—The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

Pursuant to that authority, the Supreme Court of Florida established the Rules Regulating the Florida Bar. See for example, 605 So.2d 252 (1992).

The Supreme Court of Florida by these rules establishes the authority and responsibilities of The Florida Bar, an official arm of the court.

Of those rules, Rule 4-1.5, paragraph (f), subparagraph (3)(A) states:

(f) Contingency Fees. As to contingency fees: […] (3) A lawyer must not enter into an arrangement for, charge, or collect: (A) any fee in a domestic relations matter, the payment or amount of which is contingent on the securing of a divorce or on the amount of alimony or support, or property settlement in lieu thereof; […]

A violation doesn’t necessarily lead to disbarment, since there is a whole disciplinary process to follow and the Bar may not recommend, or the Supreme Court may not carry out, any disciplinary action.

~Max

#11

I take your point, and thank you for it; but, in a way, that makes me want to move the goalposts back to where they were at the start (which is an odd change of pace).

After all, what got me thinking of this was a novel where a private eye got hired by a guy “to get the goods on his daughter-in-law and bounce her. I think his idea is that the goods are to be handmade, by me, but he didn’t say so in so many words.”

(His words: “I’m making you a proposition. The day she’s out of here, with my son staying, you get ten thousand dollars … The day a divorce settles it, with my son still staying, you get fifty thousand.”)

So: what about a private investigator? (And, putting aside murder and adultery for a moment: again, what about hiring a ‘consultant’ — or whatever — who maybe helps your kid get into a good college by legitimately playing tutor and advisor and et cetera; but, to the extent that the contract limits itself to discussing the like of What Happens If The Kid Gets Accepted To This Or That University, your hireling will maybe break the law to attain the agreed-upon goal, who can say?)

#12

Well, first and foremost you have the protection of perjury. Whoever makes the statement in court - be it the private investigator, or the spouse, faces penalties if they lie under oath.

Second, private investigators are subject to their own set of laws. In Florida, advising, encouraging, or assisting in the violation of any statute is grounds for disciplinary action. Fla Stat. 493-6198 paragraph (1), subparagraph (k):

(1) The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter: […] (k) Knowingly violating, advising, encouraging, or assisting the violation of any statute, court order, capias, warrant, injunction, or cease and desist order, in the course of business regulated under this chapter.

I need not explain that it is a crime (defamation, Fla. Stat. 836.04) to falsely and maliciously accuse a woman of being unchaste; nor that falsely and maliciously accusing a married man of adultery has the same effect. So it seems to me that a private investigator who contemplates fabricating evidence of adultery risks losing his license and a $1,000 fine. (Plus another $1,000 fine for each count of perjury, in addition to the normal penalties for perjury.)

(Also, Florida is a “no fault” divorce state so adultery would have little to no effect on divorce proceedings.)

~Max

#13

Sure — and a hitman faces penalties if he lies under oath about murdering someone, and if he gets caught murdering someone.

Which is the part that intrigues me: yes, if the guy who breaks the law gets caught, he faces penalties; but my question is, the guy who (a) hired him to accomplish something but (b) didn’t actually tell him to break the law — what happens if he makes no secret about drawing up a contract that makes a big deal about the end and says nothing about the means?

A contract that says Murder That Person To Get This Money? You could get locked up for even making that offer; and anyone who accepted it couldn’t collect in court, because it’d be unenforceable. A contract that says Get This Money If Any One Of A Number Of Things Happens To This Guy And You Maybe Wouldn’t Even Notice This But One Of Those Things Would Be Him Dying — what? Can you legally make that offer? Can someone collect in court on the strength of that enforceable agreement?

#14

As I understand it, the police would forward the contract to the DA, who decides if it is worth pursuing as an inchoate crime (attempt, solicitation, or conspiracy to violate any statute). In Florida the statute for inchoate crimes is Fla. Stat. 777.04. Here is paragraph (2) which seems most relevant:

(2) A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation, ranked for purposes of sentencing as provided in subsection (4).

Subsection 4 basically says soliciting a crime is one level below the crime itself. Soliciting a first degree felony is a second degree felony, etc.

If the DA thinks it’s worth pursuing, he or she will ask the judge for the appropriate warrant. And if/when it gets to the trial, the contract is introduced as evidence of the crime.

As with scenario 2, there would be a judicial decision as to whether the contract is illegal and thus unenforceable.

~Max

#15

But that’s kind of my whole question: take the like of the bare-bones offer from the novel, where a guy gets hired on terms that boil down to “you get X amount of money if she’s no longer living here and my son is, and you get Y amount the day my son is no longer married to her.” Do you figure that’d run afoul of the law you mentioned? It could be done legally; or he could, uh, murder her.

#16

Any determination of guilt comes from a jury, based on evidence presented at the trial. It is impossible to put myself in the position of a juror to answer your question without having all of that evidence in front of me.

If the prosecution only presented a factual background of the relationship between the accused and the divorce proceedings, and a recording of the solicitor saying “I’m making you a proposition. The day she’s out of here, with my son staying, you get ten thousand dollars … The day a divorce settles it, with my son still staying, you get fifty thousand.”, I would acquit as that is not enough to convict on. The recording is circumstantial evidence of a solicitation to murder/defame/etc the daughter-in-law, but it is not definitive proof beyond a reasonable doubt. Not by a longshot.

You may be interested in reading the jury instructions for your state’s inchoate crime statutes. Here is Florida’s, from the Florida Criminal Jury Instructions, Chapter 5.2:

To prove the crime of Criminal Solicitation, the State must prove the following two elements beyond a reasonable doubt:

  1. (Defendant) solicited (person alleged) to commit (offense solicited).
  2. During the solicitation, (defendant) [commanded] [encouraged] [hired] [requested] (person alleged) to engage in specific conduct, which would constitute the commission of (offense solicited) or an attempt to commit (offense solicited).

It is not necessary that the defendant do any act in furtherance of the offense solicited.

Define the crime solicited. If it is Burglary, also define crime that was object of the burglary. Also define “attempt” (see 5.1).

Definition
To “solicit” means to ask earnestly or to try to induce another person to engage in specific conduct.

Affirmative Defense. Give if applicable. § 777.04(5)(b), Fla. Stat. Carroll v. State, 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State, 174 So. 3d 1044 (Fla. 1st DCA 2015).

It is a defense to the charge of Criminal Solicitation if the defendant, after soliciting (person solicited) to commit the (offense solicited), persuaded (person solicited) not to do so, or otherwise prevented commission of the offense, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Renunciation is not complete and voluntary where the crime solicited was not completed because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances known by the defendant that increased the probability of being apprehended.

If you find that the defendant proved by a preponderance of the evidence that [he] [she] persuaded (person solicited) not to commit the (offense solicited), or otherwise prevented commission of the (offense solicited), under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] not guilty of (crime solicited).

If the defendant failed to prove by a preponderance of the evidence that [he] [she] persuaded (person solicited) not to commit the (offense solicited), or that [he] [she] did not otherwise prevent commission of the (offense solicited), under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] guilty of (crime solicited), if all the elements of the charge have been proven beyond a reasonable doubt.

~Max

#17

We could go into this further but since it’s your example, you hold all the cards. This person accused of soliciting a crime could argue that the recording was only soliciting legal advice or a referral to a good divorce attorney. It is not unreasonable for a private eye to know good divorce attorneys nor is it unreasonable for a protective parent to spend exorbitant sums of money to fight battles for their adult children. Even if they didn’t make the argument it is a reasonable doubt in my mind which must be disproved before I would convict.

The state has to prove that the defendant asked for or tried to induce specific criminal conduct - specific means. A recording of the defendant offering to pay someone if some circumstance comes to pass, without specifying criminal means with which to accomplish that end, does not establish a crime.

~Max

#18

Too late to edit, but this should read, “without specifying or implying criminal means”.

~Max