DennisBeaverSeptember 14, 2018 • By Dennis Beaver

It is legal for a lawyer to secretly record a conversation with clients? How about a client, or a client’s friend, making the recording and not informing the lawyer?

If you’re thinking, “President Trump and his former lawyer, Michael Cohen,” then we are on the same page.

It depends upon the state where the recording was made. Eleven states, including California, require consent of everyone recorded. In most others, only one person’s permission is needed, and that is usually the person making the recording.

But what happens when that required consent wasn’t obtained, and a recording reveals some truly rotten legal advice given to a client in a divorce case?

A Hanford reader played that kind of a recording for me recently, confirming all that I had been told about a certain Central Valley divorce attorney.

“You want to cause him grief? I’m your guy.”

“I accompanied my sister to a consultation with a divorce lawyer known for being a jerk. Neither she nor the attorney knew I was recording it. I was shocked to hear the lawyer tell my sister to say all kinds of false things about her husband to get a kick-out order and temporary support even though she has hidden a small fortune from him.

“He’s a good guy, and sis has mental issues. Is this a common practice among divorce lawyers? What does this say about the legal profession? What should I do with this recording? Thanks, Brian.”

Where does the blame lie for unethical lawyering?

I am often asked if the American Legal System is more dedicated to the care and feeding of lawyers than in helping people solve their problems, especially in divorce cases. If true, where does blame lie? What role, if any, do clients play?

Lawyers profit from disputes which often aren’t handled in a mature manner by unreasonable people. When you and your neighbor have a problem and refuse to make a good faith effort to resolve it, you just improved the lawyer’s bottom line.

Late with the rent or don’t pay a bill that you owe, a legal secretary somewhere gets a larger Christmas bonus. And when you hire a lawyer know for unnecessarily causing the other side grief – dragging things out – both attorneys make a lot of money at the clients’ expense.

Over the years, this column has pointed out that what clients want from the legal system often dictates what they will get. Want to punish your spouse? Easy, just hire an attorney who has a reputation for making the other side go through hell. And please, don’t worry about what you are doing to the kids. Get even now.

If you claim to have deep religious views, set them aside and have fun seeking revenge. Or, as I was once told, “What I want you to do isn’t very Biblical, but the Lord has forgiven me.” My reply? “Please show me a fax or email from the Lord proving that, and, by the way, prisons are filled with people claiming to be forgiven. Judges don’t see it that way.”

“It’s a matter of principal.”

If, during your initial consultation, you state, in so many words, “I really want to cause the other side pain… it’s a matter of principle,” you’ve just opened yourself up to being taken advantage of by a system that will let you pay for revenge.

Isn’t it much better to say, “I want an objective recommendation: Will the expense justify this action? I don’t want your opinion as my lawyer, but as a judge.” Remember that as in medicine, second legal opinions are a very good idea, particularly in hotly contested divorce/custody cases.

Recognize that there is a built-in conflict of interest between client and lawyer. The more work performed, the more the attorney makes. As you are seeking second or even third opinions, pay careful attention to the attorney who tries to discourage you from litigation. You may have hit upon that gem of a lawyer who cares about honesty and advice that is best for the client.

It is hard to send away a client who has money to burn, and the real problem with our adversarial system is that it discourages lawyers from really asking the hard question, “Is this truly best for the client?”

So my advice in the selection of an attorney is fairly simple. Find a lawyer who tells you in so many words, “Yes, you could file suit, but why? What are you really going to gain? Why not save the money and take your family on a nice vacation?”

And our advice to Brian? “You have violated California Penal Code 632, face a year in jail and a $2,500 fine. Destroy it and help your sister find an ethical attorney lawyer.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.