Threats to gain an advantage are a bad idea

By Diane Karpman

Karpman

Some people think that “Chicago lawyers” are a special breed who really know how to play hardball. Some small town lawyers think the same thing about “L.A. lawyers.” A Chicago lawyer was recently reined in by our Supreme Court (Flatley v. Mauro, 2006 DJDAR 9854, July 27, 2006). Basically, the Chicago lawyer told a target celebrity, a well-known Irish dancer: Give us a million dollars or we will accuse you of rape, and inform just about every major media outlet of your heinous act, in addition to telling “U.S. Federal, Immigration,  I.R.S., S.S. Admin., U.S., State, Local, Commonwealth U.K., or International” authorities.

Some of you (perhaps some L.A. lawyers) might say that the Chicago lawyer was simply being zealous, and his comments ought to be protected by the First Amendment in addition to the litigation privilege. The Supreme Court articulated support for the litigation privilege, reciting examples including subornation and actual perjury, defamation, etc., because “[a]pplying the litigation privilege to some forms of unlawful litigation related activity” advances the broad goals of the privilege, although there may be some collateral damage or even “an occasional unfair result.”

The court essentially created an exception to the anti-SLAPP statute, which will not apply if the conduct is “illegal as a matter of law.” Maybe the Chicago lawyer mistakenly thought that the way you determine something is “illegal as a matter of law” is through the litigation process?

Some of you may think that all litigation is a type of extortion. However, that does not mean that lawyers are immune. California’s Rule of Professional Conduct 5-100 specifically prohibits lawyers from threatening to bring criminal, administrative or disciplinary charges to obtain an advantage in a civil matter. The prohibition on threats of criminal repercussions is not universal, and about half the states permit it if it is directly connected to the civil allegations.

When the ABA’s Model Rules were amended in 2002, the threatening prohibition was specifically deleted because the drafters believed that extortionate behavior is encompassed within the penumbra of numerous other rules. Therefore, in many states, informing an adversary of the consequences of their conduct, and therefore allowing people to evaluate the ramifications, is believed to decrease litigation because it encourages deliberate decision-making.  

A couple of prohibited themes in the threatening cases involve listing other governmental agencies or sending copies to prosecutors. In the Matter of Malek-Yonan (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 627. Another reoccurring theme is sex. Accusations of rape, or alleging that someone (such as Erin Brockovich) is “less than chaste,” is crossing the line. People v. Reiner, 2004 Cal. App. Unpub. 5134.

Litigators should not fret, however, because they can still be “rude, aggressive, or even belligerent” in pre-litigation settlement negotiations.

Illinois is one of the states that continues to prohibit threats of instigating criminal charges in pre-litigation settlement negotiations. Therefore, this Chicago lawyer should have known better.