Too Clever By Half

Another interesting State Bar Court decision, this one unpublished.  In the Matter of Bhardwaj.  Aside from another reminder that lawyers can be disciplined for conduct occurring outside the practice of law when they represent themselves, there is an interesting discussion of one of the things the respondent was sanctioned for an elaborate system of abbreviations meant to circumvent the word limitations in the Court of Appeals.  The Office of Chief Trial Counsel argued that it’s violated the lawyer’s duty to uphold the law (Bus. & Prof. Code section 6068(a)) and was an act of moral turpitude (Bus. & Prof. Code section 6106.) Neither, said the Review Department, citing to their own published decision In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, because court rules are not equivalent to statutes, and the au courant definition of moral turpitude from the Supreme Court, In re Lesansky (2001) 25 Cal.4th 11.  Rather, respondent was rather “too clever by half”. This was clever enough, however, to constitute an aggravating factor.

No example of what this abbreviation system looked like in practice or was so dense as to amount to a secret code.

 

State Bar Court Precedent Blooms in the Spring

 

Like May toadstools sprouting after an April rain, three new published Review Department decisions appeared together on the State Bar Court’s website on or about May Day.  Only one (In the Matter of Amponsah) is recent, filed April 22, 2019; the other two (In the Matter of Chance Gordon and In the Matter of Gonzalez) were filed last fall.

Exactly what determines when a published decision will appear on the State Bar Court’s website is a little mysterious. Gordon and Gonzalez are disbarment cases and the State Bar Court may have waited until the California Supreme Court acted on its disbarment recommendations before publishing their decisions. The recommendation in Amponsah is a one-year actual suspension, with a two year stayed suspension and probation. At this writing, it has not yet been transmitted to the high Court.

The real fun for those who follow the State Bar Court is figuring out why these decisions were deemed worthy of publication.  Publication gives the opinion precedential value in State Bar Court under State Bar Rule of Procedure 5.159.  Subsection E describes the criteria for publication:

(E) Criteria for Publication. By majority vote, the Review Department may designate for publication an opinion which:

(1) Establishes a new rule, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule;

(2) Resolves or creates an apparent conflict in the law;

(3) Involves a legal issue of continuing interest to the public generally and/or to members of the State Bar, or one which is likely to recur;

(4) Makes a significant contribution to legal literature by collecting and analyzing the existing case law on a particular point or by reviewing and interpreting a statute or rule; or

(5) Makes a significant contribution to the body of disciplinary case law by discussing the appropriate degree of discipline based on a set of facts and circumstances materially different from those stated in published opinions.

Most Review Department decisions don’t make the cut and are unpublished and not citeable as precedent.  Any given observer might read one of those decisions and conclude that it would fit within the criteria established by the Rule 5.159(e); clearly, selection reflects an exercise of the Review Department’s discretion.  Its collective mind can be changed, and Rule 5.159(h) allows “any person” to request publication of a decision or to request depublication of a decision.  Unpublished decisions have become published at the request of the Office of Chief Trial Counsel (OCTC), e.g., In the Matter of Nasser, as well as the Association of Discipline Defense Counsel, e.g., In the Matter of Yee.  Gordon and Gonzalez may have been originally unpublished opinions subject to such a request; the current unavailability of the State Bar Court on-line docket makes it impossible to confirm that now.

The Gordon decision is truly a toadstool and a highly toxic one at that.  The Respondent engaged in nationwide loan modification practice in partnership with a non-lawyer that included the mailing of many misleading direct mail letters, some seeming to come from the Department of Housing and Urban Development, the use of a number of different entity names and websites, and the collection of $11.4 million in advanced fees from from more than 2,000 in violation of Civil Code section 2944.7.  The Consumer Finance Protection Bureau (CPFB) obtained a permanent injunction against Mr. Gordon in 2012 shutting down the operation. The Office of Chief Trial Counsel, in one of the infrequent applications of its power to seek interim remedies under Bus. & Prof. Code section 6007(c), obtained an order for his involuntary inactive enrollment from the State Bar Court in November 2012, based on the CPFB’s injunction as well as a large number of client complaints.

The misconduct was serious, probably serious enough to justify disbarment given the lack of mitigating factors and several aggravating factors.  But the icing on Mr. Gordon’s cake was a weighty aggravating circumstance: his multiple threats against an OCTC investigator and prosecutor.  Based on these threats, the prosecutor obtained restraining orders against Mr. Gordon.  The Review Department spends three pages of the decision describing these threats in detail.

The scope of the egregious underlying conduct and the serious aggravating circumstances would seem to fit comfortably within Rule 5.159(e)(5) by furnishing a significant contribution to disciplinary case law materially different than prior case law.  After discussing its prior published discipline cases involving loan modification misconduct, the Court states that

While the loan modification cases discussed above provide guidance, this case is unique.  Due to the scope of Gordon’s scheme and the egregious aggravation, our recommendation may go beyond the discipline recommended in a typical loan modification case.  (See In re Morse [(1995) 11 Cal.4th 184] at p. 207 [scope of attorney’s misconduct necessitated court go beyond recommendations in other false advertising disciplinary cases].)

The citation to Morse is significant because of Morse’s procedural history.  Mr. Morse engaged in a massive direct mail solicitation effort (over four million mailers) to persuade homeowners to hire him to file statutory homesteads with a deceptive mailer designed to look like it came from a lender. The subject California Attorney General and the Alameda County District Attorney filed a successful action against Morse in for an injunction to halt his operation, upheld on appeal.  Nonetheless, the Review Department, based on precedent, recommended only a 60-day actual suspension.  The Supreme Court found this wanting and ordered discipline including three years of actual suspension.  Moreover, it chided the State Bar Court for being overly dependent on its analysis on decisions whose facts were less serious.  The Supreme Court articulated the inquiry this way:

These decisions provide some guidance, but our determination of the appropriate discipline ultimately depends on the answers to two key questions. First, what did Morse do wrong? Second, what is the discipline most likely to protect the public, the courts, and the profession, or stated conversely, to deter Morse from future wrongdoing?… Morse also appears unwilling to accept any meaningful discipline. The hearing judge recommended only a 15-day actual suspension, an exceedingly light sanction. Rather than count his good fortune, Morse felt wronged, arguing to the review department that the suspension was excessive. When the review department increased the actual suspension to 60 days, still a minor sanction, Morse sought our review.

Morse is a “correction” decision and its impact wasn’t limited to Mr. Morse.  The presiding judge of the State Bar Court, who sits in the Review Department, and the Hearing Judge in the matter were not re-appointed.  OCTC prosecutors (including me) felt emboldened, and the office began to focus on appellate advocacy in the Review Department.  Gordon has more than a passing similarity to Morse. Both cases show that while precedent is important in State Bar Court, it isn’t as important as it might be in other courts.  Of course, the test articulated in Morse is simple but somewhat circular since figuring out the appropriate discipline is what its all about anyway.

Gonzalez is a duller and sadder affair.  Mr. Gonzalez, admitted in 2002, was disbarred on his third strike since 2011. The first discipline involves failures to perform, to communicate, to account for fees and to return client files that began in 2005.  Mr. Gonzalez failed to fulfill the conditions attached to that discipline and was disciplined for that in 2012.  The third strike involved both client misconduct similar to the first discipline and a failure to comply with California Rule of Court 9.20, the rule requiring notice of suspension to clients and others, among other things.

The Hearing Judge recommended an actual suspension of two years and until restitution was made to the clients, based on the judge’s reasoning the misconduct in “Gonzalez II occurred after much of the present misconduct.” (See In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619: weight of aggravation for prior discipline record depends on whether attorney had the opportunity to heed import of prior proceeding before committing misconduct at issue.)  The Review Department disagreed, finding that “Gonzalez committed most of his present misconduct in 2011 and 2012, when he knew of both prior discipline cases.”  Standard 1.18 suggests disbarment on the third strike unless compelling mitigation can be shown. The Hearing Judge assigned significant mitigating weight to the stroke Mr. Gonzalez suffered in 2012.  Again, the Review Department disagreed, finding that the expert medical evidence did not show “clear and convincing” causation between the medical problems and the misconduct.

Gonzalez may be useful precedent on the application of Standard 1.8 and the quanta of evidence necessary to establish causation for medical problems.  But it doesn’t stand out brightly against the unpublished decisions that apply the same sort of analysis, for instance In the Matter of Na, which also discusses Standard 1.8 but comes to a different result, two years actual suspension.  If OCTC asked for this case to be published, I would love to read their argument.

Amponsah is a “second strike” case where OCTC sought disbarment for a failure to comply with California Rule of Court 9.20 and violation of two probation conditions. Case law says that disbarment is the presumptive discipline for failing to comply with Rule 9.20.  Mr. Amponsah was able to show that he made unsuccessful attempts to comply with the Rule and the emotional difficulties he suffered after the imposition of prior discipline played in role in his failure to timely comply.  Moreover, no client was harmed and he admitted his culpability. The Hearing Judge found “suspension rather than disbarment is appropriate because [Amponsah’s] misconduct is not indicative of his ability to conform to ethical norms” and recommended an actual one-year suspension.  The Review Department, in the exercise of its de novo review (see Rule of Procedure 5.155(a)) weighed the mitigating factors a little differently but adopted the same recommendation.

Amponisah has presidential value in its analysis of the mitigating factors.  OCTC sought disbarment below and, losing, appealed the case. Publishing the decision might be a signal to OCTC discouraging appeals where the record establishes appropriate mitigation.

This isn’t specifically provided for in the rules but in the relatively small world of disciplinary jurisprudence, but it is within the discretion of the Review Department hinted at in Rule 5.159(e).

But the nature of that small world points up a seeming contradiction in the use of Review Department decisions as precedent.  OCTC lawyers, defense lawyers, and Hearing Judges are all going to be reading (or should be reading) both the unpublished and the published decisions to understand how the Review Department is analyzing issues and taking guidance from them.  The Review Department gets to choose (by majority vote) which decisions will be used in the future, but not which arguments.  Unpublished decisions may play a bigger role in discipline jurisprudence than in civil court, a role not obvious, making the publication status both important than it seems, but also pointing up the publication is a decision made by the Review Department for its own reasons, some that might not fit completely within the confines of the Rule.

 

Real Lawyers Do Take Notes

The reported exchange between President Trump and the former White House counsel Mr. McGahn regarding his note-taking shines a light on one of the bigger fault lines in legal ethics: the tension between the lawyer’s role as an advocate for a client and the lawyer’s responsibilities to others.  Not a perfect example because McGahan was not Trump’s personal lawyer but for the Office of President, but close enough to illustrate some of the aspects of that fault line.

The fact that the distinction between his personal lawyer and White House counsel (and the Attorney General as well) seems to been lost the President is one aspect of that tension.  Lawyers for organizations are consistently called upon to remind corporate constituents that they don’t represent them, and themselves need to be reminded by Rule 1.13.  Clear understanding of who the client is the first task of any lawyer, a task sometimes difficult in government service where the client is an abstraction speaking through an individual. Lawyers generally have no duty to communicate with non-clients but they have a duty to communicate the true facts of the relationship to non-clients who might reasonably believe they are clients (see Butler v. State Bar (1986) 42 Cal.3d 323.)

Identifying the client is critical to the duty of the lawyer to communicate relevant limitations on the lawyer’s conduct as required by Rule 1.4(a)(4).  Among those limitations is the lawyer’s inability to lie for the client (Rule 8.4(c), Rule 3.3(a), Bus & Prof. Code §6068(d), §6106.) Another is lawyer’s inability to prosecute an action without probable cause to injure someone (Rule 3.1.) Another is the lawyer’s inability to advise the client to violate the law (in most instances) (Rule 1.2.1.)

Rule 1.2.1 occupies a position directly over that fault line.  Oliver Wendell Holmes famously characterized the lawyer’s duty as to zealously represent the client within the bounds of the law.   The conjures up the image of a race car speeding across the Bonneville salt flats and suddenly stopping on a dime.  Crossing the line can occur in many ways and unconsciously. Zeal can become zealotry, especially in emotionally charged representations. Clients want lawyers who care about their problems but lawyers must be sources of independent dispassionate advice.  Loyalty, money or the lawyer’s own emotional needs can interfere with this balancing act.

While a lawyer cannot counsel a client to violate a law, a lawyer can inform the client about what the law is, whether the client’s course of action might violate the law and what the consequences of that violation. In course of that give and take, the client may inevitably garner the information necessary to figure out how to violate the law with impunity.  Rule 1.4(a)(4) requires the lawyer to inform the client that the lawyer cannot advise the violation of the law, no matter what currents of meaning flow during the consultation.

An entertaining example of those currents of meaning is provided by what might be the best lawyer movie of all time, Anatomy of Murder, in the scene were lawyer Paul Biegler (Jimmy Stewart) first meets his client Lt. Manion (Ben Gazzara).  Manion has killed an innkeeper who allegedly raped Mrs. Manion (Lee Remick).  In the first meeting, Biegler tells Manion that he is “just explaining what the law is” but in the course of discussion, skillfully suggests to Manion exactly what facts he needs to hear to establish Manion’s defense to murder (see Freedman, Lawyer Ethics in an Adversary System (1975) at pages 59-75.)

 

President Trump, according to Mr. McGahn, expressed a fondness for lawyers who don’t take notes, presumably to reference to the late disbarred Roy Cohn.  Keeping important books and records is central to the concept of lawyering, to the point where the California Supreme Court has said that failure to do so“ is in itself a suspicious circumstance (Clark v. State Bar (1952) 39 Cal. 2d 161, 174.) When a client complains to the State Bar, the attorney-client privilege (and presumably, the duty of confidentiality) are waived and the State Bar’s inquiry letter will ask for all communications and all notes detailing conversations with the client. If there is any prospect that the attorney-client relationship will go south, a lawyer would be wise to document interactions with the client.  Of course, it isn’t always possible to document every conversation with a client and the 21st century has given us texting, perhaps the worst possible way to communicate between lawyer and client.  More than one lawyer has told me that all or most of their interactions with clients occurred through text messages and they have no way to recover them to disprove the client’s allegations.

What President Trump’s comments say about the nature of his interactions with Roy Cohn is best left to our fertile imagination, although given the well-documented information on the character of both, not too much imagination may be necessary. Rule 1.2.1 might be violated in subtle ways, but subtlety is not associated with either.  Mr. McGahn is a real lawyer; unfortunately, Roy Cohn was, too, at least until he was disbarred, and it probably takes no imagination to say that Rule 1.2.1 and its Model Rule equivalent are violated all the time.

Lawyers, take heed.  Take notes.  But also take notice the counseling a client can present an ethical challenge that you might not even be aware of.

DA Work Product: Who Does it Belong To?

 

When is a privilege not a privilege?

When it is the attorney work product “privilege” is at least one possible answer to that question.  A recent published opinion (People v. Superior Court (Jones, case no. D074028, published 3/09/19) from Fourth Appellate District, Div. 1, continues to the disrespect shown to this poor cousin of more respected privileges, such as attorney-client privilege. Maybe it just doesn’t have the long pedigree that its richer cousin enjoys as originating in the common law.  Maybe its because it is a legislatively created protection that bends easily when pushed by other important public policy considerations, despite its seemingly rigid language, especially Code of Civil Procedure 2018.030(a), which purports to prohibit any discovery into “core” work product, i.e. “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.”  As Jones shows, absolute work product protection is less than absolute.

The case revolves around a criminal trial where the prosecution was later accused of Batson/Wheeler error, the Constitutional error that occurs when the prosecution removes jurors for a racial motive.  The prosecution defended its juror decisions at the Batson/Wheeler hearing by citing to its written analysis and juror information.  It then tried to shield those written materials as work-product.  At this point, you probably see where this is going.

This Court of Appeal found that the prosecution had waived its work product protection by citing to the materials in its defense.  But the Court also went out of its way to cite to black letter law on the attorney’s duty of candor to the court, Business and Professions Code section 6068(d) and former Rule of Professional Conduct 5-200 (now Rule 3.3) in knocking down prosecution’s argument that these statements could not be the basis of a waiver because the prosecutor was not a sworn witness, seeming to find the prosecution’s argument disingenuous.

There might seem to be circular logic to the Court’s position that citing to “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” in defending litigation decisions waives the work product protection – after all, isn’t such analysis the basis of most litigation decisions?  But the lynchpin of the explanation is that the statutory purpose of the work product protection, to protect the fruit of your lawyerly labor from being exploited by the opposition, is just not present in this context.

As the caption tells us, the prosecutor’s client in this matter is the People.  Disclosure of work product where it is in the client’s interest is another context where absolute work product protection is not absolute. The question of whether such work product ultimately belongs to the lawyer (the old view, articulated in San Diego County Bar Association formal ethics opinion 1977-3) or the client (the newer view, see State Bar formal ethics opinion 2004-1) still gets debated but there is no doubt that the client’s interests are paramount.  In this analysis, it is very much in the client’s interest to ensure Constitutional process in criminal prosecution.  The work product isn’t going to be exploited by the opposition but used by the client that paid for it.

This opinion seems to be creature of its context, but it may surely be used at some point to argue that the attorney work product protection has been waived.  If it stands, of course.  The case has already been to the Supreme Court once and it could be headed back.

SLAPP Happy: Anti-SLAPP Draws Sanctions and State Bar Referral

slap·hap·py

/ˈslapˌhapē/

adjective

informal

adjective: slap-happy

  1. casual or flippant in a cheerful and often irresponsible way.

“he possessed slaphappy courage”

synonyms: happy-go-lucky, devil-may-care, carefree, cheerful, breezy, easygoing, nonchalant, insouciant, blithe, airy, casual, irresponsible

“Drysdale’s slaphappy friend”

antonyms: serious, solemn
  • (of an action or operation) unmethodical; poorly thought out.

“slaphappy surveying methods”

synonyms: slapdash, careless, slipshod, lackadaisical, hasty, hurried, disorganized, haphazard, unsystematic, untidy, messy, thrown together, last-minute, hit-or-miss, offhand, thoughtless, heedless, negligent, neglectful, remiss, cursory, perfunctory, lax, slack; More

informalsloppy, shambolic, all over the place;

informalall over the shop

“the slaphappy way the tests were carried out”

antonyms: careful, meticulous, painstaking
  1. North American

dazed or stupefied by or as if by a series of blows to the head; punch-drunk.

“she’s a bit slaphappy after such a narrow escape”

synonyms: dazed, stupefied, punch-drunk, unsteady, wobbly

“she’s a bit slaphappy after such a narrow escape”

 

This peculiar turn of phrase seems all too apt to the decision from the Second Appellate District, Division 4, Workman v. Colichman.  Maybe Anti-SLAPP happy is more accurate. The defendant’s lawyers must be a a little dazed by the being referred to the State Bar of California by the Court of Appeal on top of sanctions of $35,985.00 to be paid to Workman, and $8,500.00 to the Court for their poorly thought out anti-SLAPP motion.  The Court found that motion completely frivolous and intended only for delay.

The fact that the Court took 40 pages to get to that result should be duly noted before concluding that the lawyer’s conduct in this case is culpable.  What does the Big Book of Rules say?

California Rule of Professional Conduct 3.1 Meritorious Claims and Contentions (former Rule 3-200)

(a) A lawyer shall not:  (1) bring  or  continue  an  action,  conduct  a  defense,  assert  a  position  in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or (2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.

California Rule of Professional Conduct 3.2 Delay of Litigation

In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.

New Rule 3.1 is identical to the former Rule, but new Rule 3.2 is entirely new and extends the playing field for possible disciplinary action. Lack of probable cause and a malicious purpose might be difficult to prove; after all, weren’t these lawyers required to raise every possible gambit in the zealous representation of their client. But the new Rule makes merely using means that have no “substantial” purpose other than to prolong the proceeding or cause needless expense.

The Court found:

… the evidence that the anti-SLAPP motion was filed for purposes of delay was both persuasive and unopposed. First, defendants requested multiple extensions to respond to the Complaint, stating that they were interested in mediation. However, after taking advantage of those delays, they cancelled the mediation.  Second, the anti-SLAPP motion was not filed until September 14, 2017—the very last day allowed under the stipulation, and four months after defendants were served with the complaint in May 2017.  Pursuant to section 425.16, subdivision (f), a “special motion may be filed within 60 days of the service of the complaint,” unless the court allows it to be filed later.  The trial court noted that the motion may have been untimely, but it did not deny the motion on that basis.  Third, Workman submitted additional evidence that defendants were not cooperating in moving the litigation forward, such as causing long delays in communication and scheduling the mediation.  By contrast, after the anti-SLAPP motion was denied on October 18, 2017, defendants quickly filed their notice of appeal on October 24, and filed a notice of stay shortly thereafter. [¶]Defendants made no effort to contradict this evidence. … Defendants simply ignored this evidence and argument, both in the trial court and on appeal.

Slip opinion at page 26.  I don’t generally quote Rick Perry but …oops!

The saving grace may be that Rule 3.2 did not take effect until after the anti-SLAPP motion had been filed.  While the Rules are not retroactive in their application, the existence of new Rule 3.2 might effect the disciplinary counsel’s analysis under former Rule 3-200.

And the lesson for the future should be clear.  Somebody at some point is going to be disciplined for violating Rule 3.2 while thinking that this is just business as usual.

First Returns from State Bar Fingerprinting: Mostly Misdemeanors and Probably Many DUIs

The first returns are in on the State Bar’s project to cross-check attorney fingerprints against criminal records,  well summarized by Lyle Moran in his Above The Law post.  To date, the fingerprinting cross-checks have yielded 2,200 unreported lawyer convictions, including 20 felony convictions.  Felony convictions are required to be self-reported under Business and Professions Code section 6068(o)(5); some misdemeanor convictions must also be reported, those where a “client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude…”  No breakdown yet on how many of 2,180 misdemeanors were matters that were required to be self-reported.  The prosecution agencies are required to report criminal matters under Business and Professions Code section 6101(b). Sometimes that occurs because they never learn that the defendant is an lawyer; sometimes they are apparently unaware of the statutory requirement, likely bureacratic negligence. It is still early in the process to know how many serious crimes the fingerprinting dragnet will uncover but the majority of them will probably turn out to be first time and only time DUIs.

Traditionally, such crimes were given a pass by the Office of Chief Trial Counsel; lately some of them have merited resource letters and information on the State Bar’s Lawyer Assistance Program. A few with high BAC have been pursued in State Bar Court. Both the Office of Chief Trial Counsel and the State Bar Court are notably less tolerant of alcohol related criminal conduct, a trend highlighted by the decision In the Matter of Guillory (Review Dept. 2015) 5 Cal. State Bar Ct. Rptr.__ , where the respondent was disbarred after four DUI convictions.  The Court distinguished its earlier decision in In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, a case where it found that the circumstances surrounding multiple misdemeanor DUI convictions did not involve moral turpitude.  A recent Hearing Department decision in a DUI case noted that society has become more intolerant of drunk driving since the Supreme Court decided a public reproval was sufficent for a second DUI in In Re Kelley (1990) 52 Cal.3d 487, although it found no moral turpitude.

Lawyers who have been foolish enough to drive while intoxicated may not always get a pass from the Office of Chief Trial Counsel.  In its robust new (?) role as police agency, it is moving in that direction. They may soon be seeking reproval level discipline even on a first time DUI, with harsher discipline including actual suspension, for the second.  Now, more than an ever, a DUI is problem a lawyer can’t afford.

Serious felony crimes will take priority, as these 20 already have.  As for the rest, the list will be triagged with recent crimes probably gathering more attention.  Court files may not be availble in older cases and the State Bar may have to investigate those it chooses as self initiated State Bar Investigations following the “original” discipline path, not the criminal conviction path charted by Business and Professions Code sections 6101 and 6102.

At the end of the day, the great fingerprinting dragnet may turn out to be much less of a big deal discipline-wise, except, of course, to the attorneys who will be disciplined.

 

 

 

Playing With Someone Else’s Chips: Lawyer Extortion

There is probably no bad time to discuss the ethics of extortionate lawyer demands, written and otherwise, but this time may be better than most. These ethics may seem a little paradoxical, much like the crime of extortion itself – how can I be criminally liable for threatening to do something that is perfectly legal for me to do? But a close reading of authority shows that lines can be drawn that an attorney should not cross.

Criminal extortion is defined by Penal Code §518 as “the obtaining of property or other consideration from another, with his or her consent … induced by a wrongful use of force or fear….”  Attorneys are in the business of obtaining property on behalf of clients, and they often do so by utilizing means that employ some types of force and are fearful in their effect. At the same time, attorneys are subject to the principles of extortion, depending on whether their use of force or fear was the “wrongful” type.

How to begin to draw that line? We can start with a specific Rule of Professional Conduct, Rule 3.10, which forbids an attorney from threatening to present criminal, administrative or discipline charges to gain an advantage in a civil dispute.

Notice that Rule 3.10 does not forbid the threat of civil litigation to gain an advantage in a civil dispute. The Rule can be read in light of Penal Code § 519, which defines the type of fear that “may” support a finding of extortion: “1. To do an unlawful injury to the person or property of the individual threatened or of a third person. 2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. 3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. 4. To expose a secret affecting him, her, or them. 5. To report his, her, or their immigration status or suspected immigration status.”

Section 519’s use of the word “may” suggests this isn’t a definitive list of all the types of “force or fear” that might be “wrongful” and thus extortionate. Rather, the list included in Penal Code § 519 is representative of the characteristics that may serve to violate the statute.

Case law also illuminates the distinction, and the widely read case of Flatley v. Mauro (2006) 39 Cal.4th 299 is essential, both for understanding Rule 3.10 and for understanding the broader concept of extortion.

Former Illinois attorney Mauro sent a demand letter to Irish dancer and entertainer Michael Flatley, famed as the “Lord of the Dance,” in Mauro’s capacity as the attorney for a woman who accused Flatley of raping her.

The letter demanded $100,000,000.00 and threatened that “all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed … [w]e are positive the media worldwide will enjoy what they find,” that “all pertinent information and documentation … shall immediately [be] turned over to any and all appropriate authorities ” and that along with “the filing of suit, press releases will be disseminated to various media sources, including but not limited to” a list of about two dozen different news media.

There was also a conversation Mauro had with Flatley’s attorney Bert Fields, wherein Mauro stated the story would follow Flatley wherever he went and that he would “destroy” him. Flatley then filed an action against Mauro in California for extortion and defamation. Mauro filed a SLAPP motion that was denied. After the Court of Appeal affirmed the denial, Mauro tried his luck with the California Supreme Court. The Supreme Court found Mauro’s conduct extortionate as a matter of law, not protected by the litigation privilege (Civil Code §47) and fair game for anti-SLAPP purposes, and, citing Libarian v. State Bar (1952) 38 Cal.3d 328, imbued with moral turpitude.

A more recent Court of Appeal decision examining a demand letter, Malin v. Singer (2013) 217 Cal.App.4th 1283, comes out the other way, finding the demand letter protected petitioning activity, not extortionate, and protected by the litigation privilege  Attorney Singer sent a demand letter to his client’s partner in a limited liability company (LLC), alleging conversion and breach of contract. Singer specifically contended the partner had sexual liaisons with older men he called by nicknames such as “Uncle” and “Dad.” He enclosed a photograph of one of the men, noting that he was a judge, and provided a complaint with blank spaces for their names. Singer stated the complaint filed in the trial court would disclose the men’s names.

In Malin, the trial court found the letter extortionate and denied a SLAPP motion. In its decision, the Court of Appeal found the demand letter was SLAPP-protected petitioning activity and subject to the litigation privilege, observing the men were not members of partner’s family and the demand letter included claims that partner embezzled money from the LLC and used the LLC’s resources to facilitate the liaisons and to communicate with the men. The Supreme Court denied review.

The line drawn by Flatley and Mailin is this: you can raise some ugly allegations in a demand letter provided the contemplated disclosure of the bad stuff takes place solely in the context of litigation and such disclosure is necessary to prove your case. Such a use of legal “force” is not “wrongful” for extortion purposes. However, if you threaten to utilize means outside the civil litigation process (news media, criminal prosecution) you cross the line into extortionate conduct.  As summarized by a smart ethics lawyer in a conversation I had with her some time ago, “you can’t play with someone else’s chips.”

 

In the end, Bus. & Prof. Code §6068(f) might provide the pithiest guidance of all: “It is the duty of the attorney … [t]o … advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.”