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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“Recently, the insurance property adjusting firm I work for hired a brother and sister, ‘Jack and Jill,’ who are competent, but their behavior around our supervisor, who is a bully, is creating a toxic environment. They are the very definition of suck-ups.

“To avoid burnout, there is an understanding with upper management about the number of hours a week we should work, which the supervisor hates. Even though it’s clear they aren’t happy being stepped on, Jack and Jill do whatever he wants, even working entire weekends, making the rest of us look lazy.

“When they praise his drive and work ethic — openly, so we hear the compliments — I just want to puke! We are all wondering why these two are so willing to be doormats. I heard Jill whisper to her brother that the supervisor reminds her of their dad. So I am thinking, ‘They are acting like victims of domestic abuse.’

“Is there something the rest of us can read that would help in understanding the dynamics and what, if anything, we can do to help them? They do not seem to be able to just say, ‘No more,’ and people are talking about quitting this place. Thanks, ‘Leon,’ on behalf of my coworkers.”

The need to please can be related to domestic abuse

“Dennis, your reader has very good insight,” says Los Angeles-based clinical psychologist Dr. Ingrid Clayton after I read her Leon’s email. “This sounds like people who were exposed to domestic trauma, learning to please and appease an abusive parent. We call that ‘fawning.'”

Clayton is the author of Fawning: Why the Need to Please Makes Us Lose Ourselves — and How to Find the Way Back, which will be published in September.

I was sent an advanced copy of this fascinating book that shines a spotlight on why we sometimes bend over backward to please a jerk, or, as Clayton notes, “to at least get that person to leave us alone, because we are afraid.”

Saying ‘yes’ when ‘no’ is called for

We’ve all known someone who was unable to stand up to unfairness at home or on the job, who caved in, saying “yes” when “no” was called for, ultimately trying to avoid some type of feared or perceived harm by appeasing the abuser.

I’ve seen this kind of conduct often in my law practice and always wonder and sometimes even ask clients: “Why are you caving in?”

Clayton’s book helped me understand how a series of life events steals from so many people what the Cowardly Lion was searching for in The Wizard of Oz — courage.

She gives us a key to understanding this disturbing element of behavior. Fawning is an insightful read — a true eye-opener — for business majors, HR consultants, managers at all levels and families who are frustrated by actions they don’t understand.

“Dennis, fight, flight and freeze are responses to perceived physical or psychological threats,” Clayton says. “But now, we are aware of the fawn response, which can become an ingrained, harmful behavior.

“Fawning is a people-pleasing strategy to stay safe by appeasing others. And, yes, while compassion and empathy are important life qualities, excessive and unhealthy fawning often results in blurred boundaries and difficulty asserting one’s needs.”

Consequences of people-pleasing

Clayton makes clear that being a “people pleaser” 24/7 has no upside. “Continually attempting to ‘look good’ in other people’s eyes comes with a high price: Chronic fawning means you lose yourself, and that can take a serious toll on your emotional well-being and is associated with anxiety and post-traumatic stress disorder (PTSD).”

So, if you are a fawner, what price do you pay? According to Clayton, the list includes:

• Saying “no” can be virtually impossible, as you are unable to set boundaries to requests.

• You put yourself last and the needs of others first. This eventually eats at you.

• You avoid conflict at all costs, allowing small issues to grow massively.

• As people take advantage of your apparent “yes” to all requests, you become resentful.

How friends, family and coworkers can help

I asked Clayton, “What approach can friends, family and coworkers take that might help?” She had these suggestions on what to say:

• “I’ve noticed you’re bending over backward to keep the peace with so-and-so. Are you doing okay?”

• “It seems like you’re carrying a lot of weight around here. Do you feel like you have to?”

• “Is there any way I can support you?”

“These aren’t confrontational statements,” Clayton adds. “They offer care, awareness and can help the fawner begin to reconnect with their own values and boundaries. The key is to validate their survival instinct while inviting reflection: ‘You’re doing what you need to do to get through this.’ And, ‘what do you need to feel more like you at work again?'”

After reading Fawning, I couldn’t help but think, “I wish I’d known this when I was in law school.”

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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Mr. Beaver, I have a real complaint about lawyers and am sure that you have heard this before. Why is it that most-not all, but I think most-are completely unconcerned with the morality of what they do? I know of a family law attorney in our town who thinks that it is perfectly acceptable to help fathers avoid paying child support. We have others who clearly mis-representation the facts to the press when a client is arrested, and later, when convicted or a guilty plea is entered, they say nothing. It is as if right and wrong do not matter to them. What is your response, thanks, Holly, a San Diego reader?

As one of the professions, law historically had been thought of as a noble calling. Medicine cured. Architecture built. Law righted wrongs and helped society resolve problems. But with over one million lawyers in the country – more than 200,000 in California alone – far too many of us have more important things to do than urging people to resolve their problems economically, and out of court. We have hours to bill, fees to earn, car payments to make-and our clients make it all possible.

Instead of being viewed as a source of ethical guidance, seasoned with a strong dose of morality and fair dealing, we are generally considered as useful tools, as a way to avoid responsibility, hired guns – expensive hired guns. This was illustrated by a Bakersfield attorney’s license plate which read HI-FEE. His partner’s at the time was PAY2ARGU.

Lawyers tend to laugh when the public asks, “How do you justify trying to help a person avoid paying past due child support, or a bill they owe and just refuse to pay?” But there is nothing funny about that question, for so often members of this profession knowingly do everything in their power to stand, not for, but in the way of justice and fairness.

Zealous Representation

This attitude is justified with two of the sweetest words in our vocabulary: Zealous Representation. We are required to zealously represent our client, which is supposed to mean competent, diligent representation, not an excuse for doing anything in order to win.

There is a difference in Zealous Representation and Representation by a Zealot. But that is today’s reality, as in general, even with the shakiest of grounds, lawyers can file or oppose meritorious lawsuits, lose, and rarely if ever have to pay the other side’s legal expenses. This is referred to as “The American Rule.” In other countries, the loser pays the winner’s expenses resulting in much less litigation.

This bizarre “American Rule” (created by, you guessed it, lawyers) offers a Free Lunch to members of the legal profession. If anything comes close to legalized extortion, this is it, as many defendants – individuals, companies and cities – just cave in to save defense costs.

So, a mom and dad allow their kids to play in a lake at a city park, fail to watch their daughter and she drowns. “There should have been a warning sign!” screams their attorney, looking for a deep pocket (and nice fat fee for his law firm) ignoring the simple fact that for years similar signs have been posted with few positive results. He is preparing to file suit against the city, and odds are that when he loses the case, the city will be out all the money it spends in defense costs.

(I understand the family’s lawyer wanted warning signs to be posted on every bathtub and shower in the City of Bakersfield, in at least 15 different languages, but when his partners heard of the plan, he was taken away to Sunny Acres in a Straight Jacket.)

Merely Following Orders

Some time ago, I represented a timid, geeky and brilliant computer consultant. He was retained by an oil company to solve their remote monitoring problems – and was so successful at it, that the local manager asked him to tackle other problems. But this giant corporation refused to pay him for the extra work, even though the manager testified in his favor. It was clear that no real defense existed; the poor guy was owed his wages.

I asked the corporate attorney one question: “You can see that there is no defense, how can you morally sit here and help your client refuse to pay the guy for the work he did at their request?”

His answer: “I do what my client tells me to do.” But since that lawyer was Jewish, and over 6 million Jews died in gas chambers by people just following orders in the Holocaust, I then stated: “Merely following orders? What does that make you?” “Are you calling me a Nazi?” He yelled. “Yup, I sure am, and a hypocrite.”

He stormed out of my office. A few days later the case settled.

Indeed, when a lawyer agrees to accept the defense of an accused, there is a duty to competently carry out that task. But this should not mean using the media as a propaganda tool. Not long ago a twice-convicted DUI driver-with a blood alcohol level of .08-caused a fatal auto accident near Taft, California. At an .08 you are presumed to be under the influence. His well-known, local attorney announced to the media, “Well, .08 isn’t that high.”

“.08 isn’t that high?” It’s against the law, Counselor! Your client killed a completely innocent family man, and yet you have the unmitigated nerve to tell the public – hopefully someone who winds up on the jury – that it’s no big deal driving with the equivalent of more than a six pack of beer in your system. Those statements are more than an embarrassment. They send a message, a dangerous message; it’s no big deal to drive under the influence.

Good for the Lawyer Often = Bad for the Client

Some years ago, when I was virtually living in court, handling litigated divorce cases every day, right before going into trial I noticed a couple talking nicely. “You seem to be getting along pretty well,” I volunteered. “Have you ever thought of seeing a good marriage counselor?” “No, we haven’t,” they replied, “can we stop this today and see someone?” they asked. “Of course you can!” I said, and gave them two names.

Suddenly, the opposing attorney – a caricature of a lawyer, twisted faced, hair half grey, half black, realizing that today there just might not be a huge fee generated from their unhappiness, reached over and grabbed me by the tie, pulled me a few feet away. “Beaver, are you trying to take bread off of my table?” he yelled.

So much for really caring about your client. (By the way, that couple got into counseling, saving their marriage.)

Don’t Tell me To be Fair!

Not long ago I had a case where Dad hadn’t paid child support in over 14 years even though he visited his son every weekend. Dad, by the way, owned a large gym which grossed more than $500,000 yearly.

When his attorney was asked about the morality of offering $125 per month in support, her answer was: “Don’t ask me to be fair. I am not here to be fair or to judge my client, but to zealously represent him.” “Even if you directly help him harm his child?” I asked. “I don’t care,” she said, walking away.

Just what are we doing to our country with this kind of amoral behavior? What are the lessons that society receives?

How much more responsible might it be to tell a father who can obviously pay decent child support that he should do so?

But to act socially responsible and do good interferes with our ability to drag out a case. It costs us money. And we can justify it all through those two magic words.

Where was it written that we are forbidden from making moral judgments of our clients? Where is it written that we should help them do bad things? Isn’t theft bad? Isn’t it bad to run away from debts that you can pay and in fact owe? But far too many lawyers are cloaked in this strange shield. They don’t have to really care about the consequences of what they do because of what I believe to be, a twisted sense of duty.

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

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Part 1

Sexual Harassment lawsuits have become a simple, cost-effective way for some lawyers to legally commit blackmail and extortion.

Why do I say legally? It’s because an attorney can get away with making the kinds of threats which would send a non-lawyer to prison. If you are a business owner, or thinking of starting a business and hiring employees, today’s story should be of special interest. There are steps which can be taken to help you avoid the expense, time loss and monumental worry these kinds of suits bring.

Dr. Tom was then 45, married, kids, happy family and successful in his Los Angeles family practice. He had never been sued in the 15 years that he was in private practice, nor a complaint made about the way he treated his staff or patients.

Two of his patients were a mother and her 17-year-old daughter Bobbie, a bright young lady who graduated early from high school and was in a business college, wanted to become an executive secretary. Needing part-time help in the office, and knowing that money was tight for mom and daughter, he offered Bobbie the job.

But the doctor did not know that they had a secret. Bobbie had been diagnosed as a pathological liar. She made up stories to achieve various goals.

After working in his office for about six months, one day Bobbie didn’t show up for work. Wondering why, the office manager phoned home, spoke with Mom, and was told, “Bobbie just doesn’t want to work in the office anymore.”

A week after that conversation a letter from a local attorney was hand delivered to Dr. Tom. It read, “Bobbie is prepared to file a suit against you alleging sexual battery which occurred during the course of a physical examination. This could easily come to the attention of the police, and you know what could happen. I suggest your lawyer contact my office and we attempt to resolve this matter out of court.”

One week later, a meeting took place at the lawyer’s office.

Dr. Tom acknowledged that he had examined Bobbie, when she was ill with what he suspected was pneumonia, or some other serious infection, and needed to rule out more threatening diseases. His nurse was in the room with them. Using a stethoscope, he listened to her chest, and palpated her neck, under her arms and elsewhere, looking for signs of swollen lymph glands. That was the “sexual battery,” according to her lawyer, touching her breasts, or nearby without any medical justification.”

“I firmly believe what you did was improper. We will settle for the payment, in one week, of $10,000 and a confidentiality agreement. If not, I am prepared to file suit, and my client is ready to make a police report,” Bobbie’s lawyer yelled.

When a physician is accused of anything to do with sexually improper conduct, be it in a law suit, or criminal prosecution, a career, reputation and a medical practice can be placed at great risk, if not completely destroyed, even if no criminal charges are filed and the doctor is cleared in the civil suit.

He paid the $10,000 under the advice of his attorney. He paid it the next day, with an agreement to keep the matter confidential. This all took place more than 10 years ago.

Call it Karma, poetic justice or the hand of God, but ill-gotten gains come with a price, as three years after Dr. Tom paid the money, Bonnie’s mother told him the truth about her daughter’s mental condition. Mom was then terminally ill with bone cancer — one of the most painful.

“She asked to be forgiven. I told her that she should burn in hell for her betrayal,” he emphatically told me.

“The hurt stays with you. To this day, I am so angry with all of them, especially the two I tried to help. I know some people might say it isn’t right, but I’m still upset with my own lawyer. I should have defended myself,” he told me.

Call it “buyers remorse,” or, more correctly, in this case, the reaction of an innocent man.

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

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One of the more interesting things about the legal profession is the disillusionment young lawyers often experience when they move from government jobs into the very different world of private practice. It certainly was that way for Brandy, four years out of law school, and one of our readers since she was in college.

“Mr. Beaver, your column got me seriously thinking about becoming a lawyer. I liked the idea of helping people solve their problems and public service. So, that’s what I did, landing my first job in a Northern California D.A.’s Office,” her e-mail began.

“It was more than a job. It was ethically and morally rewarding. If we had doubts about a defendant’s guilt, we were encouraged to dismiss. The entire philosophy of the office was to be fair and to do the right thing. Frankly, wanting to earn more money, after three years I accepted a job with a law firm that does criminal defense and family law near Sacramento. In comparison to what I was paid as a deputy DA, I was suddenly very well paid — and realized just how corrupting a high salary can be.

“While the firm claimed to have high ethical standards, what I observed, was asked and expected to do, became impossible to accept,” her e-mail continued.

“In just a few months I was exposed to a side of the legal profession which I only thought existed in novels or the movies: lawyers to whom right and wrong did not matter and who only saw our clients as money machines. My New Year’s resolution was to leave this place, and that’s exactly what I’ve done. If you’ve got a minute, can we talk?” Brandy asked.

Indeed, I had all the time in the world for this young lawyer and spent an encouraging hour with a member of our profession who cares about her clients, and to whom right and wrong means something.

Brandy’s comments shed light on, as she put it, “The Dark Side of the Force.”

Sadly, what she witnessed isn’t new; it’s widespread. But it’s rare to have someone “on the inside” come right out and tell it like it is to a newspaper columnist.

“How you win doesn’t matter”

The duty of a defense attorney is to assure the client receives due process — a fair trial. But, does assuring fairness mean it’s OK to hold press conferences and distort the truth?

“What drove me crazy was the way in which the other lawyers in my office made completely false statements to the media. I was repeatedly told to take every opportunity to proclaim our client’s innocence and say anything which would justify their behavior even where we knew it was false.

“While I knew the answer, of course, I asked my boss if this wasn’t unethical. His reply? This is law practice; it isn’t a law school course in legal ethics. Clients are paying you to win, and how doesn’t matter. Just do and say whatever is necessary to confuse, so, if they don’t acquit, you’ll at least get a hung jury.”

Grand standing to the media is a favorite tactic of some attorneys who have little respect for the truth. It’s unethical and just plain wrong. However, Brandy saw much more than that.

“In the time that I worked in this office, I sat in on meetings with clients where they weren’t just coached in how to testify, but told what to say. That kind of behavior is clearly improper, and when I raised this issue, I was basically patted on the head and told not to worry,” she added.

“One of the strangest things about this firm — and several of the other criminal law specialists I’ve met through them — is the way they publicly justified or trivialized things that can never be justified. Instead of saying nothing to the press, or telling the truth, they lied. In one fatal DUI case, I heard them tell the media that the defendant’s blood alcohol wasn’t very high, when it was almost three times the legal limit. Spousal abuse by a well known physician — -his wife landed in the hospital with fractures — was described as just a little argument that got slightly out of hand.”

Liquid lunch before trial

This column has discussed the well-documented fact that lawyers have one of the highest rates of depression and substance abuse of any profession, 50 percent higher than the general population. Brandy’s year with the firm was an eye opener in this area as well.

“One of the things which really bothers me about one high-profile, criminal defense lawyer, was his excessive drinking,” Brandy said. “I am not against a reasonable consumption of alcohol at the proper place and time. But lunch recess in a trial isn’t the time for a liquid lunch break, returning to court TWD — Trying a case While Drunk. It was a daily occurrence. Client’s deserve better,” she correctly maintains.

“It is that disregard for the best interests of the client which I found so foreign. This isn’t the way ethical lawyers should act,” Brandy believes.

Not all that way

“I know not all lawyers are like this law firm. And I also understand just how difficult it can be for the public to find a lawyer who puts the client’s needs first,” my reader observed.

“In my year here, I discovered those juries and the public put lawyers on trial along with their clients. I’ve spoken with jurors who were incensed by the tactics I saw, and who were likely harder on the client simply because they were so upset with the attorney. That’s something you can tell your readers, Mr. Beaver. Be careful of what your lawyers tells the media — it could hurt you, big time.”

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

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Janet, Laura and Maggie (names changed) are preschool teachers at a Christian school in San Bernardino. The divorced friends are in their mid-30s, and with their children, share a house together.

The school has a contractual policy requiring adherence to Christian principles of honesty and against any form of homosexual behavior by either teachers or students. Under current law, religious schools are free to have such policies, while public or for-profit private schools may not.

All were physical education majors and are still active in competitive sports. But there was something about their appearance that bothered another teacher for a long time.

“If they aren’t lesbians, then they must be overgrown tomboys,” Tiffany told several colleagues at school one day. “I am certain they are gay!” she announced later to another group of both preschool and kindergarten teachers, adding one interesting “fact,” as she described it. “I have seen a photograph of them kissing each other, here, on the campus!”

Odd looks and whispers

But there was no such photograph. Yet, within hours of this malicious gossip, the lives of three completely innocent people were turned upside down. If anything threatened a “hostile work environment lawsuit,” this did.

When word of this gay issue reached the principal, she asked the school’s attorney to conduct a thorough investigation. The day selected was a Friday, for if a decision to terminate was going to be made, there would be time to clear out personal belongings and arrange for a replacement.

“First of all, we are not gay! We got the strangest looks from so many people. When we found out what was being said of us, we were all in tears,” they told the school’s lawyer, who asked that I keep his name confidential.

“This is not an issue of your sexuality,” he replied. “Rather, Tiffany has clearly created a hostile work environment by gossiping and spreading rumors. Office gossip about sex or sexual orientation is an invitation for a lawsuit, something the school does not want.”

Over the course of several hours, the attorney discovered that Tiffany — whose mother is a minister, if you can believe that — had originated false rumors about one teacher allegedly being physically abusive to a student, and that another instructor’s daughter was pregnant! She had been warned to knock it off by a supervisor.

“I concluded that little Tiffany is malicious and a danger to the school. I felt a personal sense of relief in telling her to collect her things on Saturday,” he told me.

The types of gossip that will get you fired

If anyone is looking for a place in line at the unemployment office, then just spread the word that your supervisor is having an affair with the CEO’s wife. That will earn real brownie points.

Or, speculate aloud about a co-worker’s alcohol issues or addiction to porn and drugs, and possibly having a sexually transmitted disease. Let everyone know that Bill had a DUI 10 years ago — a fact he’s ashamed of.

What? Sue got fired from Wal-Mart five years ago for stealing? Let everyone know you can’t trust her. She just might get your job.

Gossip denounced by all major religions

All major religions denounce the spreading of rumor and gossip. What appears in holy books applies to the workplace for the same reasons. Rumor and gossip is destructive, even if true. If certain information is relevant to the job, it should be told to a supervisor, or the HR department, in confidence.

Gossip damages morale, creates doubt, anger and frustration, a perfect recipe for workplace violence or a suit against the employer — and gossiper — on a variety of legal theories. “I learned in this investigation the truth of the saying, ‘If you can’t say something nice about someone, don’t say anything at all,’ ” the school’s lawyer so correctly stated.

No warnings necessary

While Tiffany was merely warned to cool it, it is possible to be fired after a single episode of gossiping about a co-worker. It will depend upon what was said and the degree of harm caused.

After Tiffany was gone, without mentioning her name, a schoolwide meeting was held with faculty and support staff. They talked about the seriousness of gossip and rumor, and what it can do to an organization.

“Cut a feather pillow open, on a windy day, walk to an open window and shake the pillow. After the feathers are gone, gather each one and bring them back. It is impossible, as it is equally impossible to take back all the unkind things said about others.” (Paraphrased from “Who Knows Ten? Children’s Tales of the Ten Commandments” by Molly Cone.)

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

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Later this month, Newport Beach Pacific Life will host a fabulous six-day event halfway around the world for the U.S. structured settlement industry.

According to the invitation, the gathering at the Four Seasons Maldives isn’t a junket but rather “an educational setting” to “exchange ideas on how to promote” annuity sales to accident survivors. Attendees are encouraged to bring a guest.

Since the Four Seasons advertises pristine, white sand beaches and turquoise waters, I suspect that settlement planners will do more than discuss insurance.

Pacific Life will also host U.S. structured settlement planners and their guests at a four-day gathering at the Four Seasons in Dubai, later this year.

Pushed toward a Pacific Life structured settlement annuity?

These trips raise a disturbing possibility: Will structured settlement planners push accident victims to certain companies even if others offer better or less expensive options?

If someone in your family has a structured settlement annuity from Pacific Life purchased in 2015 or after, can you be sure that your lawyer’s recommendation to go with them wasn’t influenced by a broker just itching to go on one of these trips?

Here are a few interesting numbers. Industry data from The Life Insurance and Market Research Association reveals that Pacific Life’s structured annuity sales dropped nearly 10 percent between 2013 and 2014.

But starting in 2015, when it announced a week-long industry gathering at the Four Seasons in Bora Bora, its sales surged from about $770 million in 2014 to nearly $1.2 billion in 2017, even as the overall structured annuity market was flat.

Lawyers expect settlement brokers to be fiduciaries for the client

Accident victim lawyers I know expect and view structured settlement brokers as acting in a fiduciary capacity for their clients and develop trusting relations with these people. Yes, brokers are paid fairly standard commission by the insurance companies who issue structured settlements, and that’s normal.

But if I knew that advice to influence my client to select a certain insurer had any connection with one of these incredible trips, it would be the last time I would ever use that broker.

While “Saturday Night Live” and Congress at times have a lot in common, one of the best things our representatives in Washington ever did for injury victims took place in 1983 when the tax code was changed to encourage structured settlements. This allowed an opportunity to put some or all of the settlement into an annuity that provides long-term financial support, completely exempt from both federal and state taxes.

Often clients must be persuaded to accept a structured settlement

Lawyers are fiduciaries, watching out for their client’s best interests with settlement funds and it is usually a challenge to persuade clients to consider protecting their future with a structured settlement.

Plaintiffs typically like the idea of taking as much cash as possible, which is generally the world’s worst decision. Hand most people several hundred thousand dollars and in less than three years it’s all gone; these people are likely to go on public assistance. However, a structured settlement can prevent such an awful outcome.

Time for the feds to take a look at these incentives

Congress has the power, and many would argue, the duty to investigate these incentives and the possible negative impact on accident victims.

Structured settlements protect the security of innocent people. That’s why both Congress and the structured settlement industry must pay attention to these troubling problems that are beginning to harm the industry’s reputation. Insurance incentive programs threaten to undermine confidence in structured settlements generally.

Congress needs to shine a powerful light on this situation. It may cause temporary pain in the industry but it will bolster long-term confidence in a program that has unmatched potential to help those in need.

Pacific Life’s response? – Where can this all lead?

So, what does Pacific Life have to say?

I left two voice mails and sent an email to Pacific’s man in charge of structured settlements, Geoff Kissel. He referred me to Steven Chesterman in their Communication Department, who emailed, “Wanted to let you know I received your message and we have no comment for your story.”

Finally, I would not be surprised to see these successful efforts to supercharge their structured settlement business result in class action litigation. In my legal opinion, thousands of annuitants could argue they were victims of a monumental consumer fraud and conflict of interest.

Because that’s what it smells of. And even if simply by appearance only, the harm done to the reputation of the structured settlement industry is significant.

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

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While you may not have seen the 1989 fantasy-drama sports film, Field of Dreams, staring Kevin Kostner, you’ve certainly heard its message: “If you build it, they will come.”

For readers of this column who have wanted to go out on their own, but have been afraid to do so, then Breaking the Glaze Ceiling by Lyle Sussman PhD will help you find your Field of Dreams.

If you’re wondering, “Glaze, as in donuts?” You’re right! The book was inspired by Sussman’s daughter Annie, who, along with her friend Leslie, opened a donut shop, “Certain they would not fail and shattered barriers – ceilings – which I thought were there, leaving well-paid jobs, starting a business which has huge competition, taking an enormous risk with limited financial resources.”

This is a story of two friends, whose Louisville, Kentucky-based, Hi-Five Doughnuts rapidly went from a tent to a donut truck to a bricks and mortar building with a national following. Sussman sees this story as representing, “A group of people in our country today who are saying, ‘If I’m not happy on a payroll, what can I do that will allow me to sing my song?’”

For Annie and Leslie, “Their song is represented in a donut, not just fried dough with toppings on it, but a creation. The bottom line is that these two friends broke through the negativity while tapping into their creativity, despite all the logical reasons not to open a donut business.”

Sing loud, sing clear and sing while you still can

Breaking the Glaze Ceiling isn’t your typical “Here are the things you have to do if you want to get into business.” No, it’s much more than that.

Sussman is a professor of management and former chairman of the department of management at the University of Louisville. He has written 16 books which have been translated into 15 languages and total more than a million copies in print.

What makes this book such a compelling read is the wisdom, the straight talk and common sense about life and time the author will not let readers ignore:

“Singing your song means accepting the reality that you just don’t want to fake it anymore, that you’re simply going through the motions so you don’t get fired. You are sick and tired of being sick and tired, and dread another day on a job that is killing your spirit and soul.”

For anyone in a job where TGIF – Thank God It’s Friday – is the only bright day of the week, Sussman offers TGIM, Thank God It’s Monday! “It is possible to look forward to a Monday because of the opportunities it provides.”

Six ceilings to break through – Do not steal from your employer

And just what are these ceilings which must be broken through? Sussman outlines six of them: Fear of failure, low self-esteem, sunk costs, negative pressure from significant others, fear to leave your comfort zone and limited resources.

For anyone who has dreamed of jumping on that risk train, there are a million reasons for staying where you are. “If not now, when?” is a theme he repeats, stressing that for anyone currently employed, there is a right way, and a very wrong, illegal way for launching a business.

“Your actions should be both ethical and legal, preventing litigation and allow leaving your current employer on civil terms,” he strongly maintains, describing the wrong way to set up shop:

1. Do not operate a business with your employer’s resources or on their clock. That’s stealing. Phones, computers and office supplies belong to your employer. Upon leaving, you want to hear good luck, not, good riddance, and you certainly do not want to hear, “You’ll be hearing from our lawyers!”

2. Be careful about using proprietary information from your current employer to start your business, such as customer lists or manufacturing processes. If in doubt, schedule a consultation with a business lawyer. The money you spend for that advice will save you a great deal of downstream heartache and expense.

3. If your current employer asks you to sign a non-compete agreement, see legal counsel before your sign it. These agreements are common, and like all contracts, are negotiable.

4. If a customer offers to set you up in direct competition with your current employer, this could easily be a legal, ethical and moral minefield. Seek counsel before taking one step further.

Life and business lessons learned from his daughter

The subtitle to “Breaking the Glaze Ceiling,” reads in part, “Sweet Lessons For Entrepreneurs and Innovators,” and as I felt in reading Sussman’s both practical and touching book, it was he – the professor – who became his daughter’s student.

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

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Part 2

At one time, going to a job interview meant doing such silly things beforehand as taking a shower, dressing in an appropriate manner, showing up for the interview at the scheduled time and honestly answering questions. This included small talk — where we grew up, family, kids, hobbies, plans for the future — in short, all the things that would reveal if the applicant seemed to be not only qualified, but a good fit for the company and other employees.

Of course, once hired, keeping that position meant acting in a respectful manner toward the boss and co-workers, coming to work sober and not too horribly hung-over from the weekend’s festivities. It also meant doing what was required, and going beyond, showing concern for the employer’s welfare.

Advancement required a willingness to hear criticism, getting along with co-workers, accepting the reality that life isn’t fair and that in every work place the ugly side of human nature will always be present.

Those employees who stuck around for years understood that, at times, someone might gossip about them.

They knew that to gossip is to be human. Those who understood the informational value of gossip accepted the fact that to talk about others is the norm, as is workplace humor. We are not all the same, and finding something to laugh at in ourselves and others is positive. At least it was at one time on the job.

But then, beginning in the mid to late 1970s, something happened to the American workplace. Responsibility, common sense and humor purchased a one-way ticket out of town.

Political correctness moved in and set up housekeeping.

Relationships between employer and employee — often closer than family — began to spiral into a hell created by a legal system which thought it was God. Gone was an employer’s right to be honest, to tell the truth, to hire the qualified and send the incompetent packing. We replaced those important values with something called entitlement, to be joined within a few years by its cousins: Workplace harassment, discrimination and retaliation.

The threat to employers is real

Last week I wrote about employers who were literally the victim of predatory employees and lawyers only too willing to help them. In one case, an attractive yet scheming waitress — with a rap sheet for DUI, theft and drugs going back years — accused her restaurant owner boss of offering her the day shift for a certain sex act.

There was no independent evidence supporting the claim but a great deal of evidence to the contrary.

The doctor was told, “If you don’t pay $10,000, we’ll go to the police and this could easily become public.” That threat — which would have been illegal if spoken by anyone other than a lawyer — led to the doctor paying the money, fearing certain embarrassment and damage to his reputation even though her claim was false and could never be proven. Lawyers can get away with what amounts to extortion, especially in this area of the law.

The employer did not have employment practices liability insurance which would have covered these types of work-related claims. It is something that most employers need to consider.

How it works

While most business owners understand the need for general business insurance, employment practices liability insurance, could be something they have not heard of, as it is a fairly recent insurance product. It provides protection from claims made by potential, present or former employees, in discrimination, sexual harassment, wrongful termination and many other employment-related matters.

The insurance could also be of critical importance if you’re on the board of directors of any organization which has employees. Board members are often sued right along with management. So, a word to the wise; if someone asks you to be on any board of directors — profit or nonprofit — find out if they have employment practices liability insurance which covers directors.

Attorney David Blaine, who practices in Southern California, is a recognized expert in employment law, lecturing and writing in this field. He describes what EPLI insurance offers this way:

“It primarily insures against the legal fees related to employment claims — discrimination, harassment, retaliation, wage and hour issues, and so on. Even one claim against an employer can be tremendously expensive — potentially $100,000 in attorney fees if it goes to trial. While no one wants to be sued, having even one claim makes having that insurance incredibly valuable, as it will save you a fortune in out of pocket expenses, equivalent to years of premiums.”

“While 90 percent of these claims settle, the law is biased in favor of the employee. There is also a very strange one-way attorney fees provision, which means that if the employee prevails, then the employer pays attorney fees. But, it doesn’t work the other way around!” he points out. “The cost of employment practices insurance is rapidly coming down. For many employers, the yearly premium $2,500 to $5,000. It can be a real life saver.”

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

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Today’s story has all the elements for an episode of “Desperate Housewives,” and began two years ago, when I was introduced to “Dr. Sandy,” an extremely handsome, well-respected surgeon in Fresno. “A doctor’s doctor,” as his colleagues described, along with a picture-perfect family; wife, three daughters, and financial success. But as I would soon learn, many years ago, deep blemishes appeared in that picture.

His was a story of poor choices, refusal to do the obvious leading to immense sadness. Over the time that I have known him, his movie-star features began to reveal something else: he has become a man stalked — by terror.

‘I can’t stand the air’

After completing residency in Los Angeles, with his new wife and three daughters, the couple moved to Fresno where he rapidly was recognized for extraordinary medical skill.

But Sandy’s wife “couldn’t stand” the air quality. And so, with their three young girls, she moved back to the Los Angeles suburbs, where the air was better, and could also avoid the “Fresno mentality,” as she put it. Over the years, with one excuse after another for not returning to live with her husband, “Mrs. Sandy” became a study in neurosis.

And Sandy, like a lot of docs, was good at medicine, great with his patients, but cursed by one fundamental character flaw: weakness. He should have told wife and daughters, “Listen, we live here, in Fresno, it is a nice town, there are lots of good people here, our income is derived from this place, we are a family and I want us to remain together.”

All of this took place more than 25 years ago. Sandy, the surgeon, living in Fresno, wife and daughters, in Los Angeles, occasional visits, almost like an inmate’s conjugal visits.

Some marriages aren’t real marriages. Sandy’s hadn’t been one for many years. While it is easy to say that they should have divorced, they didn’t. Instead, developed separate lives.

One day, into Sandy’s office and life walked a new patient, Carmen, a high school Spanish teacher. Soon thereafter, needing to improve his Spanish, doctor and teacher sat down for private lessons. Carmen was 40ish, attractive, well educated, funny, warm, caring, and there for Sandy. Soon, their emotional and physical needs were met.

There was just one slight problem.

Carmen was married to Scott, and on a good day, their marriage could only be described as odd. He was a sex addict, demanding her affection to the point of abuse. But her relationship with Sandy was different, “truly lovemaking,” as they told me, one evening over coffee.

While I am not Catholic, it was obvious that, in their eyes, I had become their surrogate “father confessor,” a Starbucks double espresso replacing holy water.

We had this discussion as Scott found out about the liaison. When he did, the life Sandy knew before would be forever changed. Not only did a jealous husband call all of Sandy’s phones, leaving dark-sounding messages, but somehow, every time Carmen and Sandy met, Scott knew that she was with him, or close by.

Scott also knew where Sandy was, where he was headed, how close he was to the family home in Los Angeles for an occasional visit. Moments before pulling into the driveway, Sandy’s cell phone would ring. “Do tell Tracy hi from me!” was the message.

The dark side of GPS

Scott knew where his wife was, where Sandy was, virtually at all times, as he legally purchased GPS tracking devices and attached them to their cars. Every 10 seconds, an updated position was transmitted using cell site ground location technology, and Scott was able to follow each vehicle on his computer or cell phone.

With Google Earth, he could see the precise location where the cars were located.

He also installed a program on his wife’s cell phone, providing the same information, as well as a record of all of her text messages and numbers called.

While it was legal for him to attach the GPS tracking device to his wife’s car — as he is listed as an owner — he violated California law by placing it on Sandy’s vehicle. He had committed a misdemeanor.

A risk threat assessment evaluation was conducted by my private investigator. It was “high” in all categories — personal and workplace violence, family, and economic loss.

Often lawyers are faced with both legal and moral issues tightly wrapped together. I told Sandy he must end the relationship now.

Has he? My gut feeling is that he has not.

We’ll look at GPS tracking devices in a future article.

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

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