“Mr. Beaver, I’ll bet you have never heard a story that I’m about to tell you, but it is the truth. I think that I may have contributed to my husband’s death from COVID. Will the attorney-client privilege apply to our conversation, so that what I tell you remains just between the two of us?”

“Kate,” sounded distraught and was crying. Suddenly I was fully awake from my afternoon slump and could feel adrenaline coursing through my body.

She was right; in all my years of writing this syndicated column, I’ve never spoken with a reader who believed she may have caused her husband’s death.

The Attorney-Client Privilege

We have all heard of the attorney-client privilege. With some exceptions, it creates a “zone of privacy,” enabling a client – or potential client – to reveal things they might otherwise hide if the lawyer could be forced to divulge the contents of their conversation.

However, before the privilege can be found, an attorney-client relationship is required, or the reasonable belief by the client that one exists. A casual chat at a social event or, in my case as a journalist, speaking with readers phoning with legal questions, does not generally create that professional relationship.

Occasionally, people long on vengeance and short on common sense call, instantly blurting out their plans to damage a former employer’s property – or worse – giving me all the details, and asking for advice on how to not get caught!

I ask, “You think the attorney-client privilege applies to our conversation, right?”

They reply, “Of course it does!” I imagine that my next comment has resulted in some of them almost fainting.

“It does not, and when we hang up, I am placing two phone calls, one to your former employer and the other to law enforcement, so think this over carefully.”

In general, courts have found in favor of people who, in good faith, thought the privilege applied to their conversation with a lawyer. Here, Kate made it clear her expectation that what she would tell me was confidential and therefore privileged. She was correct.

“Why are you responsible for your husband’s death?”

Kate explained that she and her late husband “Brian” were having marital problems and she had considered divorcing. Together they had an accounting practice, in a Southern state with one of the lowest rates of COVID vaccination.

“Brian was hooked on all of these conspiracy theories, becoming a different person, and believing that COVID was a hoax. He forbade me and our employees from getting vaccinated! But I told them to ignore that, get the shots if they wanted to — on a Friday after work — so by Monday they should all be back to feeling normal. All of us did, but no one told Brian.”

Wanting to find some way of motivating her husband to be vaccinated, Kate spoke with a psychiatrist client who suggested a different approach.

“Instead of arguing and insisting that he get vaccinated, tell him that you now agree with him and also feel the whole thing is a governmental scam. This should make him suspicious — that you want him to get COVID and die — so to frustrate that, he will probably get vaccinated. It is worth a try,” he said.

“I did what he suggested. We stopped arguing but I was terrified as the numbers of sick people kept increasing. Brian never got vaccinated and fell ill with COVID. I should also tell you that he was obese, had kidney disease, high blood pressure and COPD. Within just a few days COVID killed him, and I feel so guilty, Mr. Beaver!

“What if the psychiatrist were to be asked by the police about my discussions with him, and what I did? Could I be in legal trouble?”

Psychotherapist Privilege

Kate is protected by the Psychotherapist Privilege which is similar to the attorney-client privilege, announced by the Supreme Court in the 1996 Jaffee v. Redmond decision.

The privilege covers confidential communications made to licensed psychiatrists, psychologists and, depending upon the state, to a broad variety of mental health care professionals.

She is in the clear from a legal perspective, not that any DA with an ounce of compassion would ever consider prosecuting her for her husband’s death, in my opinion, as it was his choice to not get the vaccine.

A Version of the Darwin Awards

I ran her story by an ER physician friend who said, “This is the perfect example of a Darwin Award.”

These are “honors” for people who remove themselves from the gene pool by causing their own death in stupid, idiotic ways.

“ER docs all over the country are seeing thousands of people who refuse COVID vaccination, becoming Darwin Award winners,” she said. “Dennis, we won’t admit it to families, but so many of us have lost our compassion for these people who put themselves, their families, friends and coworkers at risk by refusing vaccination. Frankly, I stopped feeling anything except anger. ”

I urged Kate to seek mental health counseling immediately.

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

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As a direct result of the attorney-client privilege, whatever you say to a lawyer, at all times, is strictly confidential. Neither the lawyer not client can be forced to reveal what they discussed. True or False?

“The answer to that question will surprise most people,” Oshkosh, Wisconsin-based attorney Steven R. Sorenson tells You and the Law. The former President of his state’s Bar Association is regarded as one of our country’s top experts in legal ethics.

“Before the privilege exists, it must be shown that an attorney-client relationship has been developed. When a client reasonably believes that they have entered into a relationship of trust, then you have that legally recognized — and incredibly important — relationship.”

“At social occasions, lawyers are often asked legal questions. For example, if someone meets me at a party and says, ‘I got a speeding ticket last night, what do I do?’ There is no anticipation that this is truly an attorney-client relationship unless the attorney does more. For example if the attorney says ‘just go to court and plead not guilty’ they may have created the expectation that generates the relationship.

“If, at that same party, someone says, ‘May I give you a call tomorrow? I have a problem with my mother’s estate.’ If I say, ‘Sure,’ and they do call the next day, the moment I take that call, the person on the other end believes that we have a professional relationship, otherwise I would not be taking the call. The relationship exists.

“But if someone just goes online, gets the number of an attorney, calls, and when the lawyer comes on the line, say, ‘I just murdered my wife. What should I do?’ Too bad. There is no attorney client privilege at that point. Depending upon the state you are in, the lawyer could pick up the phone and call the police.

“There has to be a reasonable belief that a relationship exists and is voluntarily entered into by the lawyer. Once it does, confidential communications are kept secret and candor — complete honesty to each other is required — which becomes the bedrock of our profession,” Sorenson underscores.

For anyone serious about hiring a divorce lawyer, Sorenson has this important advice:

“Don’t procrastinate! Because if you do, there is a good chance that you could lose the chance to hire a truly good lawyer close by in your community if your spouse goes lawyer shopping.”

Here’s the way it works:

Wife does not want husband to hire any of the top divorce lawyers in town. So, she schedules meetings with all of them, revealing a considerable amount of information about the case. Her purpose is to make it impossible for hubby to retain any of the lawyers she has met with, since that lawyer could be disqualified, or “conflicted out,” as it is called in law.

“We have a colorful description of this unethical practice: Poisoning the Well,” Sorenson notes.

For anyone thinking of a little “well poisoning,” realize that most law firms specializing in family law charge their regular hourly rate for an initial consultation or refuse to meet. This discourages the spouse who wants to play games.

“Lawyers are required by our Rules of Professional Responsibility to represent clients to the best of their ability. But how can you do that when your client lies to you and you discover it?”

“When that happens — when your client tells you something that you know to be untrue, expecting that you will use that information in court — or worse yet — that he is going to lie in court, you have a duty to resign.”

One of the worst things a lawyer can do is to knowingly represent a falsehood to the court.

“Lawyers have an absolute duty to not misrepresent the facts or the law to a judge. For that reason, we often have a little chat with our clients and stress that, if we are going to win this case, you must be candid and honest. If you lie to me – we are dead meat.

“If, in the middle of a trial a lawyer discovers that the client is lying on the stand, ethically there is a duty to tell the judge, “Your honor, my client and I have a communication problem and I am unable to continue with the case.”

“Judges aren’t blind. They have been there before. The lawyer might be dismissed from the case,” Sorenson concludes.

And if not, just imagine the feeling of being represented by a lawyer who has lost faith in his client.

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

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When you meet with your attorney and paralegal, the one thing that you can count on and don’t even give a second thought to is that your conversation will be confidential.

Indeed, the attorney-client privilege — confidentiality of attorney-client communications — is the bedrock of the legal profession.

Clients are able to disclose sensitive — often embarrassing information — without fear of it being revealed, which is vital to effective legal representation.

(There are exceptions to the privilege. For example, when a client wants the lawyer’s help in committing a crime or when disclosure is necessary to prevent imminent death or substantial bodily harm.)

Smile, you’re being recorded (but no one told you)

What if, from the moment you enter your lawyer’s office, audio and video recordings are being made — without your knowledge or permission — of everything you say to the paralegals and attorneys? How would you feel?

These are not just academic questions. A credible source (she’s asked to remain anonymous for fear of reprisal) has told me that a local public services law firm that is partially government-funded is doing exactly that.

Additionally, as you will see, the lawyer responsible has created an atmosphere of fear — employees are afraid they’ll lose their jobs if they become whistleblowers.

The phone call

“Mr. Beaver,” my caller “Peggy” said, “I work for a non-profit law firm that provides free, civil legal services to low-income and older individuals. Several months ago, ‘Ivan’ was hired as our new managing partner. Within days, a place that we all enjoyed coming to was giving us ulcers. An atmosphere of fear, suspicion and paranoia has become part of everyday life, and it began when he installed video/audio cameras just about everywhere.

“Even though we hardly ever needed to call the police because of an unruly client, Ivan sent a note to everyone stating, ‘For safety, all staff must conduct meetings with clients and applicants in designated intake rooms monitored by security cameras that facilitate our ability to protect everyone during in-person contacts.’

“The lawyers and paralegals all know that eavesdropping on or recording clients without posting signs informing them of the video and audio recordings — and obtaining their consent — violates the law. None of us has ever been in a situation like this in our many years of working as paralegals and attorneys.”

As Peggy related, several of the firms’ attorneys and senior paralegals objected, pointing out to Ivan that in California — a two-party state — all parties must agree to the recording/video, or Penal Code 632 is violated, and that can lead to criminal penalties, including fines of up to $2,500 and/or imprisonment for up to one year.

You want to keep your job? Then shut up

“Ivan sits at his desk,” Peggy went on, “and is glued to the computer screen, focused on monitoring client discussions with attorneys and paralegals. It is creepy.”

Then she read a threatening email Ivan sent “To Staff.”

I have seen this email. Paraphrased, Ivan wrote, While I’ve heard about privacy and cameras, those things aren’t important compared to the prospect of losing one’s employment, financial stability and ability to provide food and shelter for our families.

“This was a clear threat to keep quiet,” Peggy told me, “and we are worried. We do not know what he might do. What do you advise?”

Ethical obligations of the law firm’s attorneys

I ran this troubling situation by an attorney with the State Bar of California’s Ethics Hotline. She said, “This conduct exposes the attorney to multiple counts of violating Penal Code Section 632, in addition to being sued civilly for invasion of privacy by anyone recorded without permission.”

She also pointed out a number of apparent violations of state bar rules that could land Ivan in hot water, including threatening the employees’ jobs.

The Ethics Hotline attorney also pointed out something that the attorneys in this firm now must do — they must report what’s going on to the State Bar of California. (The firm has since been reported to law enforcement.)

California’s ‘snitch law’

While all other states have for years required reporting misconduct by fellow attorneys to the appropriate authorities, California passed into law this bit of common sense only a little over two years ago.

The “snitch law” says that attorneys must report, to the state bar or other relevant authorities, fellow attorneys who have engaged in misconduct that includes criminal acts, conduct involving dishonesty, fraud, deceit or reckless misrepresentation, misappropriation of funds or property and any other conduct raising substantial questions about the lawyer’s honesty, trustworthiness or fitness to practice law.

This means that the attorney employees at this public service law firm have a duty to contact the State Bar of California and disclose what’s going on or themselves face discipline for failing to do so.

Clients want to trust their attorneys. In my decades of law practice, this is the first time I’ve ever heard anything like this. It is scary.

If falling into the wrong hands, these recordings could be the basis of extortion, tearing families apart, getting someone fired — the improper and illegal use of private, attorney/client communications threatens our very legal system.

Update: “Peggy” reported to me that “Ivan” sent an email to staff on Wednesday, the day after this article ran, that said that all cameras were being removed from the office that day. Peggy added, “Thank you very much for the assistance, your research and article!”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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