The Curious Case of COVID-19, a Dead Husband and Attorney-Client Privilege

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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.

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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.

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The Attorney-Client Privilege Explained

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 there must be a 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 them, “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, because Kate made it clear that she expected what she would tell me was confidential and therefore privileged, she was protected.

‘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, one based on reverse psychology.

He told her that: “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.”

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“I did what he suggested,” Kate said. “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?”

The Psychotherapist-Patient Privilege

Kate is protected by the psychotherapist-patient privilege, which is similar to the attorney-client privilege, established by the Supreme Court in its 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 D.A. 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 dumb 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 co-workers at risk by refusing vaccination. Frankly, I stopped feeling anything except anger. ”

While I can see where my physician friend is coming from, I still feel for the unfortunate folks who have been misinformed into refusing to be vaccinated to protect themselves – and those around them – from COVID. All these unnecessary deaths are a national tragedy.

And as for Kate, I reassured her that she has nothing to worry about from a legal standpoint, and I urged her to seek mental health counseling immediately.

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Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, You and the Law. Through his column, he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."