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.

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The last thing a loving grandmother could ever imagine is being falsely accused by her grandson of molesting him. Grandparents are supposed to love and spoil their grandchildren. It is one of the greatest feelings you can ever have, to see that product of the love you had for your spouse so many years ago, now happily wandering around your home, saying, “Grandma, grandpa, play with me!”

But that is precisely what a family who resides on California’s coast near San Diego could wake up facing one day. Let me tell you about them.

“Rugged, Outdoorsman and Controlling

“Debbie” met “Steve” when she was in nursing school, falling for his good looks and rugged, outdoorsman demeanor. He was a hunting guide, taking small groups of well-to-do professionals into the Northern California wilderness. Married after six months of dating, she soon discovered a controlling alcoholic, but remained with him for years. They have a son, Chad, now eleven.

It was a nasty divorce. Debbie was awarded physical custody. Steve refuses to pay child support, but as her parents are both financially well off, she leaves him alone and accepts thousands of dollars from mom and dad each month. Debbie has been and will likely always be mommy and daddy’s little girl, weak, never really allowed to grow up and become an adult, solving her own problems.

Chad loves his father and would like to live with him, despite Steve’s disobeying court orders, bad-mouthing mom and her parents. He wants custody of Chad. It is an ugly situation which got uglier after Debbie recently married Ricardo, another work of art.

Call 911

One day Chad was home alone with Ricardo and Steve phoned, telling his son, “Call 911 and tell the cops that Ricardo drug you by your hair upstairs!”

Of course it wasn’t true, but, wanting to please dad, Chad placed that call and out came the police. Eventually he admitted to lying. To the family law attorneys I ran these facts by, this eleven year old, “has demonstrated a propensity to lie and is real trouble waiting to happen.”

Debbie’s choice of Ricardo as husband No. 2 was as bad as with Steve. He is lazy–un- employed–with a wealthy mother who gives him $5,000 monthly in spending money. 

However, the picture got much more interesting when Debbie happened to mention that, as a little girl, she saw her father on a few occasions, after taking a shower, walk naked to his bedroom to get dressed. “Once, while dad was tutoring me in math, I saw him scratch his private parts,” she tells Ricardo, to which he replied, “You were molested! I know you were!”

It is clear that husband #2 isn’t just lazy, but he is a dangerous head-case as well.

“Beddy-bye time with Grandma”

Family law attorneys are in a unique position to see the future, and it is a sad one for eleven-year old Chad – who has had his own psychologist for years! As the little boy and his mom reside in the same town as her parents, at least twice a week he spends the night with them and sleeps with grandma!

That’s right. He is eleven and sleeps with his grandmother, because, as grandpa stated, “He feels more secure that way and my wife truly loves our grandson.”

I should point out that the grandparents live in a 4,000 square foot home with four unoccupied bedrooms.

One Long Beach, California family law specialist I spoke with commented, “Children are highly suggestible and want to please adults–especially parents and step-parents. Given that this eleven-year-old boy has once told a serious lie to please his father, there is little doubt that he will repeat the same behavior for the step-father, when, not if, but when Ricardo accuses grandma of molesting him.”

He added, “This is plain sick, and the whole family is screwing up this poor kid.”

“To say the least, it is troublesome,” commented Hanford family law L. J. “I have never heard of an eleven year old boy sleeping with his grandmother!”

A Psychologist’s Recommendation

“Chad needs to be weaned off of this sleeping arrangement with his grandmother,” Los Angeles-based child psychologist “Dr. Julie” immediately replied when I asked her for an opinion.

“This is not a healthy relationship, and it is likely that the people who have been the closest to Chad his entire life are the grandparents. At home he experienced the trauma of mom’s failed first marriage, and perhaps a second is on the way.

“So a refuge is cuddling with grandma. But the risk of being accused of molesting the boy far outweighs any benefit of continuing this sleeping arrangement,” she concluded.

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

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California Superior Courts report that an incredible 90 percent of divorces are now being handled by at least one of the parties without a lawyer, in Pro Per. Frequently cited reasons are that we are too expensive and often drag cases out just to run up the bill.

Having practiced family law for over 20 years, and for some reason never asked to become a member of the “Good Ol’Boys and Girls You Scratch My Back and I’ll Scratch Yours Divorce Lawyers Club,” I am in a good position to agree with the following statement:

“There never was a justification for the outrageously high hourly rates we had been demanding. Also, the conflict of interest between client and attorney in divorce is enormous. What’s financially good for our clients – a speedy, fair resolution – is bad for our bottom line. And when clients run out of money, cases suddenly get settled,” maintains a colleague who is a certified family law specialist, in practice over 30 years.

“The battle for paying clients – that 10 percent who have money for a lawyer – is as fierce as anything you can imagine in the business world. If I didn’t have my Air Force retirement, I’d be in real trouble!” he added.

With that as our background, Hanford readers Ron and Peggy’s story is a textbook example of just how bad it gets and a look at some of the warning signs.

Am I my lawyer’s retirement fund?

“Something has really been bothering me about my divorce lawyer. I am wondering if he considers me as his retirement fund. In fact, in talking to my wife, Peggy, about this, we wonder if both attorneys look at us as Mr. and Mrs. Santa Claus!”

“The only thing that she and I have been able to talk about recently without getting into an argument is just how much this divorce is costing us. We are both teachers, earning the same income and are paying our lawyers individually, so this is truly shared pain. In an odd kind of a way, these unending attorney fees and constantly going back to court have now forced us to question the legal advice we’re given,” he wrote.

“We will be in Bakersfield for a business matter, and would really enjoy dropping by and discussing this with you. I think there is a story here and a way to help others avoid what happened to us. Thanks. Ron.”

As soon as his e-mail came in, I phoned Ron and asked if we could get his wife on a conference call. Shortly the three of us were comparing notes. When they gave me their lawyers’ names, it was deja vu all over again. “You have two attorneys who deserve an Academy award in the category of creative, excessive and unconscionable billing practices,” I stated to a clearly fuming, now closely allied couple in the middle of a drawn-out, unjustifiably expensive divorce.

I asked them to scan and e-mail everything they had, whatever their lawyers had sent them, and especially the retainer agreements, but I had just one more question that I needed answered: “At the beginning of the divorce, what was the fight all about?”

Their answer floored me. “We both came to the lawyers with an agreement all worked out, and it was they who insisted on turning this into a monster!”

Clear evidence of violating the law

Beginning with the retainers the couple signed, and carrying right through the paper trail, this divorce was one of the most glaring examples of “churning” that I have seen. What should have been an extremely simple divorce was artfully converted into something that I can only describe as sick. For one of the lawyers, it began with his retainer agreement.

Anytime a case will likely cost more than $1,000, California law requires a written agreement. Until the lawyer actually performs services, any money paid must be deposited into a client’s trust account. It is not the lawyer’s money until earned. It cannot legally be deposited into the lawyer’s general account.

Yet, one of the retainer agreements stated that all funds will be deposited into the general account and may be used regardless if services have been performed or not!

Both retainers listed hourly billing rates, yet stated that all monies paid are “non-refundable.” This is absolutely wrong and has gotten more than one attorney in trouble with the state bar!

When a lawyer is billing on an hourly basis, any unused funds must be refunded to the client. Both of these guys had the nerve to state in bold letters, all fees paid are non-refundable.

But things got even more interesting, as you’ll see next week.

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

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Across California and much of the country, over 70 percent of all divorce and family-law related matters are being handled entirely by the parties themselves as a pro per–or pro se as it is called in some states. However, as any family law judge will tell you, most need at least some assistance from a lawyer or mediator.

Over the past few years, it has become possible to handle your own divorce, saving considerable attorney fees, and having access to family law attorneys and mediators who can guide you through the process and help in many other ways, as you’ll see in a moment.

But first, for anyone thinking of acting as their own lawyer, a lot can go wrong, and there are common, potentially costly mistakes which must be avoided. Southern California-based divorce attorney Hamid Naraghi is president and CEO of Divorce Helpline, a state-wide company which provides a variety of services ranging from coaching, consultations, mediation, document preparation, and helping pro pers handle their own divorce. Naraghi feels that:

“The pendulum has swung too far. It used to be that when you wanted a divorce, you hired a lawyer. Today, a lot of people think, ‘Heck, it’s just some paperwork and I can do that for myself,’ without realizing that your case may be far more complicated than you realize and you may not have the skills or ability to do your own divorce without significant support if things go wrong, or if you find yourself in trouble,” he points out.

A divorce is a real lawsuit with serious consequences

“Never forget this is a real lawsuit with potentially serious consequences. So, before you even consider doing your own divorce, stop and figure out (1) Is my situation objectively simple enough where doing my own divorce is not too dangerous and (2) Do I have the knowledge, the background, and the financial means to do my own divorce without hurting myself?

“You have to evaluate your situation and educate yourself about your rights, obligations and your options. This is not the time to listen to well intentioned friends, family members or the misinformation superhighway. A consultation with a family law attorney or mediator is often a good place to begin so that your specific situation can be analyzed, as opposed to relying on generalizations.

“Evaluating your situation means asking, ‘Is this simple or complex?’ It’s not just because you want your situation to be simple, but in reality it is. Married a couple of years, and no property? That’s simple. However, every step away from that, a divorce becomes more complex.

“With children, differences in income, retirement accounts, real estate, a mortgage, pensions, a 401(k), life insurance, own property, or run a business, then it is certainly not simple for most people.

“Pensions and life insurance are huge categories where mistakes are often discovered years later and with horrible financial consequences,” he underscores…

Take your time and hurry up

“Ask yourself: ‘If I jump in the water do I have a plan — who can help me? How am I going to proceed? Where am I going to get reliable help if necessary? Can I really do this myself?’

“Not everybody can. Be honest with yourself,” Naraghi cautions, pointing out the importance of communicating with the other side.

“Can you count on the other side to do their part in the divorce properly? There has to be a level playing field. If you can’t communicate effectively, then you need some professional help, which is where lawyers who are good at mediation can help establish productive dialogue.

“You never want to rush into a divorce and may need time to decide if your marriage is over; if not sure, then talk with someone you can trust, friend, family member, clergy, a therapist, whoever is equipped to help you with this kind of life decision. If you decide that it is over, now time to hurry up and move on. The longer you delay beginning your divorce process, the more potential there is for a simple divorce becoming complex,” he warns.

Where to get help

Within the past few years a number of law firms have been established, with Divorce Helpline being one of the better known lawyer-staffed companies which offer a menu of services to pro pers. Their website (www.divorcehelp.com) is filled with useful information that anyone with a question about divorce, support, visitation, or other family law matters needs to spend time with.

Filing the papers and trying to work out things with the other side often does not go smoothly and the couple lands in court. Next time we look at mistakes to avoid when representing yourself, standing in front of the judge.

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

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“I am going through a horrible divorce,” Kim’s email began, “and the meet and confer session at my lawyer’s office was a nightmare. We were all supposed to discuss a possible settlement of property, child custody issues, exchange current bank statements and other documents. We have given them everything they ask for, but it has not been a two-way street, with one delay after another and unreasonable demands made on us.

“While I and my lawyer were calm and polite, my husband and his attorney failed to bring any of the information earlier agreed upon, and when I asked why not, it became a screaming session, with both of them yelling their heads off at us.

“My husband is a bully and that is what he hired; right out of law school, he opened his own office as he was unable to find employment. Needless to say, nothing was resolved and we are going to try one more session, but this is costing me money I do not have.

“Before they got up and marched out of the office, my attorney quietly said, ‘Expect to pay 271 sanctions,’ and my husband’s lawyer replied, ‘I have no idea what you are talking about.’

“Can they get away with this or is there some way my husband can be forced to reimburse me for the additional attorney fees I will face and the loss of income I’ve suffered from taking off work?”

Divorce is supposed to be non-adversarial

“Dennis, you are describing exactly what should never happen in a meet and confer session. Courts insist the parties do more than merely show up; this is legally required to be a good faith conference aimed at resolving as many issues as possible,” Santa Maria-based family law attorney Steven Wagner replied when we discussed Kim’s description of what took place.

“Over the past several years, there has been an effort to make divorce non-adversarial – to take the fight out of it – and the Family Code makes that clear. A meet and confer session is an aspect of this desire to promote facing the issues constructively, not the place for a screaming match. So serious are these sessions viewed by courts across the state, that parties who do not act in good faith, causing delay and added expense, face costly sanctions under Family Code Section 271, which states:

“The court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”

Advancing a client’s unreasonable position is a disservice

While law school teaches the law and prepares students to pass the bar examination, truly becoming a lawyer requires time and experience. Hiring someone fresh out of school and on their own is rarely a good decision for all but the simplest of tasks. Here, the husband’s attorney is a good example of a “bull in a china shop” mentality some clients want, which, to Wagner, “has no place at all in divorce and certainly not in a meet and confer.”

We asked, “When a lawyer knowingly tries to advance a client’s unreasonable position, or, in a meet and confer, humiliates and punishes a spouse, what are the possible consequences?”

“Lawyers are both officers of the court and have duties to our clients,” he replied. “As an officer of the court, we have an obligation of promoting justice and the effective operation of the judicial system. You do not help your client by taking their unreasonable position, which frustrates settlement, dragging the case out.

“In divorce and all areas of law, we have a duty to say no and filter out certain things. An attorney who fails to screen and do whatever it is that the client wants – including outrageous conduct in a meet and confer – subjects their client to paying these 271 sanctions.

“For well-established attorneys, it is very easy to turn away business. Often, younger, inexperienced lawyers just starting out face economic pressure, taking on clients who aren’t looking to resolve a dispute. Instead, they view the legal system as a tool to punish someone, and have the money to pay an attorney to accomplish that goal.

“It is a disservice to your clients. If you tell them the facts of life, that their position is not sound, most clients will respect you for it.”

“Being reasonable and a willingness to comprise will always help to assure a successful meet and confer,” Wagner concluded.

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

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How deeply into the daily lives of couples should family law judges venture?

That was the ultimate question from a reader in a situation that, despite “living” in divorce court for many years, I had never been asked. For anyone considering law as a career and who cares more about helping than seeing their photo on a billboard and a fat bank balance, then today’s story shows you one of the reasons why becoming a lawyer is a path to understanding the human condition.

Our story began with a phone call from “Sandrine”: “Mr. Beaver, I own an insurance brokerage, and ‘Roy’ is my top producer. His wife, ‘Pam,’ is with me right now, and we are worried. You are on speaker, and she will explain why we are calling and need your help.”

Pam said, “Roy recently began participating in triathlon competitions. He is in his late 40s, and for men in his age bracket and older, there is a much higher risk of sudden cardiac death. I want him to be here for our 11-year-old twin boys! We grew apart, are going through an amicable divorce, and I obviously need him to help support our family. Our boys are just crazy about him. Is it reasonable of me to ask a family law judge to order Roy to give up these triathlons for our sons’ sake?”

The risks of triathlons

Many studies establish that running a triathlon is a severe test of physical fitness. Even if a person is in good shape, there is a small risk of sudden cardiac death, most likely to occur in the swimming portion of the race — usually the first part of the triathlon.

The rate of death is generally agreed to be 1.74 per 100,000 competitors. While that seems like a small number, the overall figure in healthy athletes, for comparison, is 0.5 per 100,000 per year. Stated otherwise, participating in a triathlon raises the risk of death by a factor of more than 1,000.

I wondered how folks from various walks of life would view this situation and framed the question this way: “Given the small but real potential of death in participating in a triathlon, should a family law judge get involved in a parent’s participation in dangerous sporting activities?”

Only one person — a family law attorney’s paralegal — felt that the best interests of the children should encourage a judge to address a parent’s choice of sports if that activity statistically could lead to his death. She also recommended obtaining a large life insurance policy on him.

Comments from family law attorneys/judges

When I ran the question by family law attorneys and judges, their responses were almost identical. Below, I paraphrase three of them — Southern California Certified Family Law Specialists Ed Thomas and Glen Rabenn and the Honorable Scott Gordon, who retired from the Los Angeles Superior Court, spending over 17 years in family court and is now a mediator.

They said that it would be extremely unlikely for a judge to tell the father that he could not participate in a triathlon. This is particularly true if his doctor thinks it is OK, and the request is being made by his soon-to-be ex-wife. Judges will view the request as an attempt to control her former husband’s behavior.

A better case could be made for a court order that prohibits the father from smoking, drinking alcohol or doing drugs. In the right circumstances, courts will give orders prohibiting a parent from doing those things when they are around their children.

Most judges believe that, if you want to kill yourself by living an unhealthy lifestyle, it is your business and not something with which a court should be involved. Does anyone seriously think a judge has the power to order a parent to stop overeating?

Think of hockey, equestrian competitions, scuba diving, even driving a car. Courts cannot get involved in telling a parent what they can or should do unless it poses some risk of harm to the children.

My Zoom session with the family

Sandrine, Pam, Roy and, to my surprise, the boys were all in our Zoom session, which initially was filled with laughter and hugs, making me wonder why this couple wanted to divorce.

I began our discussion: “Roy, you know that everyone here is concerned about your well-being and wants you to quit these triathlons due to the small but real risk of death. A family law judge isn’t likely to tell you to stop. Frankly, I did not expect your sons to be here, but since they are 11 years old, let’s hear from them.”

“Daddy, we love you and are scared when you go to these events.” Their faces instantly transformed from smiles to fear and tears, and then they were enveloped by Roy and Pam in an embrace that left me with a lump in my throat.

“Roy,” I said, “all I ask is that you think it over.” He agreed.

The following day

Roy phoned and said, “Mr. Beaver, not only am I quitting triathlons, but Pam and I made an appointment to see a marriage counselor. Thanks so much.”

I replied, “Thank your boss, Sandrine. Our meeting was her idea.”

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

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Divorce for some represents the ultimate in sadness and failure. Yet, for many couples, it is a realization they simply should not live together and need to move on with their lives.

That’s how it was – at first- for Hanford residents Ron and Peggy, who contacted You and the Law because they felt something was very wrong in the way their divorce was being handled by their lawyers.

“We worked out the details of our property division and were thinking of doing the divorce ourselves when friends said we should each at least consult with a different lawyer. That’s what we did, then everything fell apart, and we were into a horribly expensive, embarrassing, drawn-out fight over all the things we had earlier agreed on!” they told me.

My office was provided with copies of everything the couple’s lawyers had sent them. Within minutes, it was clear they were lambs for the financial slaughter. Beginning with retainer agreements which called for such clearly unpermitted things as “non-refundable attorney fees,” to the filing of unneeded restraining, stay away, support orders and a lot more, this couple were out over $30,000 in attorney fees.

Billing statements revealed such things as “Discussing your case with my secretary” on eight separate dates at $150 each time! Or, 15 separate bills for “case review” at $75 each. There were bills for creating bills!! Bills for “Discussing my bill with client.” They were charged for “computer time in drafting pleadings.” All of this is improper.

A lawyer should not bill a client for secretarial time unless there is some specific task performed and agreed upon in the retainer agreement. Secretarial time is considered overhead, and should not generally be billed for anyway. You should never bill a client for preparing the client’s bill! Charging for using an already-installed word processing program on your computer? A royal rip-off!

They have since fired their attorneys and gone back to square one. They have also filed a complaint with the State Bar, and are going to contact their local bar association to set up fee arbitration, in an effort to recover some of what they have lost.

“How could all of this happen without warning bells going off?” one could easily ask.

“We are teachers, not very confrontational people, and trusting. The lawyers kept on telling us: ‘This is the process, it’s expensive but it’s what we have to do.’ We should have known better. We should have probably gotten a second opinion.”

Warning signs – how to protect yourself

Are there clear warning signs that your lawyer considers you the Goose that Laid the Golden Egg? Can you protect yourself? “Yes, and in both instances you can take steps to protect yourself from being victimized,” stated Northern California family law judge “Sandra,” (not her real name, who has been a resource of this column for years) when we discussed this case.

“Divorce is one of the most brutal, nasty areas of the law. Divorce lawyers as a group aren’t pussycats and uncontrolled, can spend a client’s money like it’s water. For that reason, be sure to have spending limits written into the retainer agreement and insist in writing on obtaining your approval before scheduling such things as: Depositions, preparation of interrogatories, hiring of all experts, including private investigators.”

“While there are indeed times when restraining or stay away orders are necessary, understand they are not a magic bullet and can often produce the opposite result. So, don’t be quick to spend several thousand dollars on going back to court for something which might not be granted and which may not even help you.”

“Understand that your lawyer has a duty to tell you the truth, not enable bad behavior. So, if your lawyer tells you to knock it off and grow up, you’ve probably got a very good lawyer. But if deep down you know that what you are doing is destructive and wrong – and especially if you’ve been told so by people whose opinion you value – but your lawyer enables you to be a jerk, you are being taken advantage of and it’s going to cost you plenty. Change lawyers!

Reason for optimism

While Ron and Peggy stated their intention of finishing the divorce by themselves, I had a feeling that it would never take place. “Most of our 25 years of marriage were good, and I just don’t know what went wrong,” Peggy told me.

They were $30,000 poorer, but their body language, the care, the softness in their faces when they looked at each other, all of it left me wondering where life would take this nice couple. To court, I hope, where they will file a dismissal of their divorce.

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

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“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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Barbara and I divorced when our son, Ryan, was four. Barbara was given physical custody. I remained in our small San Joaquin Valley farming town, have always provided support and have a close relationship with Ryan.”

“He is 13 now and is doing things which are more serious than normally difficult teenage behavior. The owner of our neighborhood market caught him stealing. He’s smoking, and hanging out with some pretty tough characters. His grades have fallen. He is angry much of the time, and admits to having no guidance from his mother.

“When I discuss this with Barbara, she tells me to stop being judgmental, all kids steal, and it is no big deal. Smoking? Since she smokes, it’s normal for Ryan to want to smoke and not a problem if he does! She says that kids need to grow up and find their own path, pick their own friends, and if he doesn’t like school, it’s the fault of the teachers for being so boring. She believes it is no longer necessary to discuss right and wrong, or other issues concerning his choices.”

“Based upon these things, do you believe I could get a change of physical custody? Thanks, Terry.”

Rejection of sound advice — the immaturity of youth

In speaking with Terry, he admitted to “dating Barbara less than a year before getting married, when we were both only 20, and became parents at 21. My parents and close friends warned me that she seemed to be very immature, and did not show good judgment, but my own immaturity led me to think that she was an exciting, free spirit.”

That “free spirit” was about to force him back into court to protect his son.

Custody is never permanent

While the money issues of a divorce can be permanently resolved, custody and visitation are always subject to modification if conditions “significantly change.” We refer to this as Continuing Jurisdiction of the Court. In plain English, this simply means, “It is never over.”

Anyone involved in a custody or visitation fight who even so much as thinks they’ve won has it all wrong. There are no winners in these battles, but a lot of losers, usually the children. In the early years of my law practice, I virtually lived in Divorce Court, where it was common to see Round One, Round Two, Three, Four, in repeated efforts to win back custody or change visitation based on claims of a Change in the Circumstances of the Child’s Welfare.

I have a great deal of sympathy and respect for the judges and their support staff who work in our Family Law Courts. They are witness to more sadness — more tragedy — than most people could experience given several lifetimes. Family Law judges make life-altering decisions every day in what can be one of the most bitter and potentially dangerous places on earth: Their courtrooms.

In one sits Judge “Sandra.” That’s not her real name, as I always protect the identify of the many judges who read this column and e-mail or phone in comments. Sandra practiced Family Law before becoming a Superior Court judge in a mid-sized Northern California town. She views the issue this way:

“A mistake some parents make is in believing that once a custody order is made, that’s it, the other parent is powerless to do a thing. This is absolutely wrong. In many ways, the job of being a good parent is even more difficult after you’ve gone through a custody fight. It could be the other parent, grandparents, family members — someone will be continually taking a close look at your parenting skills. If your view of appropriate parenting clashes with accepted standards, expect trouble.”

What must be shown to change custody

Custody and visitation “is not something courts will change unless there is a real need to do so,” Judge Sandra stressed. “This is another area where the public has some real confusion. There needs to be a significant change in circumstances to warrant a change,” she added.

“It could be something simple, such an asthmatic child exposed to cigarette smoke from other household residents, but in general, courts look at anything which threaten stability of the home life or negatively impacts the child’s upbringing.”

What, specifically, has been found to warrant changing custody? The answers aren’t hard to find and include: Unhealthy changes in the lifestyle of a parent, a destabilized or dangerous household, ignoring the child’s basic physical needs, abandonment, neglect — physical and emotional — a parent’s drug or alcohol abuse, and on it goes. Interestingly, in some cases, the age at which the parents were married plays a role.

“Your reader was married and became a parent at a young age, and let’s just assume that his description about Ryan’s mother is accurate. To a lot of 20 year-olds, married with a baby at a time when most of their friends are just discovering themselves and the freedom of living on their own, a child may not be seen as a blessing. Those years you could be spending getting an education, travel — growing up — are instead, to some, a prison,” she observes.

“Escape often leads to young children being left alone while the parent with custody goes to bars or out with friends. It is an excellent way to lose your kids,” Sandra told me. “The numbers of parents who should never have had kids in the first place is more than amazing. But just try to tell some high school students that all it takes is one mistake and the party’s over; you’re a mom or dad and all those cool plans you had for life after school are now permanently changed.”

“While there are always two sides, your reader needs to immediately retain a good family law attorney who should objectively evaluate the situation. From what is described in his e-mail and your discussions, this 13 year old is at risk,” the Family Court judge concluded.

My View

Parents have a duty to their kids. Theft is wrong, legally and morally. Smoking is a known health danger. Hanging out with the wrong people leads to trouble. Good parents try to keep their kids away from the wrong influences, and if that is “being judgmental,” then, good, because that’s what defines a parent who understands the job.

Parents are supposed to be judgmental, and those who aren’t are just plain cowards, in my book.

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

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