Filing a Lawsuit or Settling a Case is Not Extortion, Despite Defense Claims
We have a special treat today. A guest post from Professor Gregory Adams, University of South Carolina School of Law, responding to and adding thoughts to a recent article from Professor Freeman.
John Freeman’s recent column in the South Carolina Lawyer (Ethics Watch: Blackmail and you, 17 S.C. Law. 9 (July 2005)) raises several interesting points about what a lawyer shouldn’t do when confronted with evidence of criminal activity by an opposing party or lawyer.
I’m concerned, however, that a most useful point was not covered, perhaps because of the point of view the column took; what lawyers need to know is what they can do in such situations. John and I are writing specifically about South Carolina lawyers, but the principles should be generally applicable throughout the United States.
As most plaintiffs’ lawyers doubtlessly realized, crying "Blackmail!" is a favorite tactic of those lawyers and clients who would hide, rather than find, the truth. Recently plaintiffs’ lawyers have been publically charged with "blackmail" or "extortion" for bringing and effectively litigating asbestos, fraud, and other class actions as well as cases involving such despicable conduct as child molestation and sexual abuse. Complaints are frequently voiced that lawyers or their clients are engaged in "blackmail" or "extortion" in malpractice or divorce cases. Yet such charges are irresponsible and baseless.
Professor Freeman is of course correct that in South Carolina it is unethical to threaten criminal prosecution solely in order to gain an advantage in civil litigation; the ABA Model Rules of Professional Conduct do not contain such a prohibition. Professor Freeman may also be correct that it may be a crime, at least in some states, to threaten criminal prosecution to gain an advantage in civil litigation.
But threatening to file a civil action for damages unless the wrongdoer settles with the victim is neither blackmail nor extortion, even if the wrong done to the victim also constitutes a crime. (Threatening to expose, in the complaint or otherwise, criminal acts having no possible relevance to the litigation, is a different matter; maybe that’s what Professor Freeman was trying to focus on.)
No reported South Carolina case has ever held that a lawyer representing a client has committed blackmail or extortion by offering to settle a dispute before filing or amending a complaint; although no reported South Carolina case has dealt with that precise issue, several cases do hold that lawyers have immunity for their acts in representing clients and cannot be liable to the opposing party for acting as lawyers. See, e.g., Douglass ex rel. Louthian v. Boyce, 244 S.C. 5, 542 S.E.2d 715 (2001) ("an attorney is immune from liability to third persons arising from the attorney’s professional activities on behalf and with the knowledge of the client, absent an independent duty to the third party").
And North Carolina has dealt directly with this very issue in Harris v. NCNB Nat. Bank of N.C., 85 N.C. App. 669, 355 S.E.2d 838 (1987), holding that sending a draft complaint and demand letter to the intended defendant prior to filing suit was privileged and constituted neither an improper threat nor extortion or blackmail, although criminal acts were alleged in the draft complaint. As the court noted in a subsequent case, "A threat to do what one has a legal right to do cannot constitute duress" and thus cannot be the basis for a claim of extortion. Sides v. Guilford County School Bd., 148 N.C. App. 406, 560 S.E.2d 886 (2002). And the key element of blackmail under the South Carolina statute is the "intent to extort money or any other thing of value."
I believe the important thing is for lawyers championing the causes of victims – whether of unreasonably dangerous products, professional or personal negligence, fraud, or sexual abuse – not to hesitate to advocate zealously for their clients out of an unnecessary concern about the current wave of name calling. Don’t threaten criminal prosecution, of course, as we’ve always known, but don’t flinch or hesitate in the face of cries of "blackmail" or "extortion." Just because the president and the senate majority leader think plaintiff’s lawyers are evil doesn’t mean they are.
It’s not improper to sue wrongdoers or to seek settlement before the complaint is filed or amended, and I’m sure Professor Freeman didn’t mean to imply there was. When those who would try to evade responsibility try to use his column to frighten plaintiff’s lawyers with improper claims of "blackmail" or "extortion," they should stand tall and reply with the rest of the story.
Mr. Adams, quite by accident caught your confusing July 21-05 blog. It attracted my attention as result of a recent involvment regarding a criminal charge -blackmail- which was filed against me personally subsequent to an ongoing defamation of character suit.
As the suit has since been resolve, but facing a jury of my peers necessary before criminal charge vindication, I am nevertheless very curious as to whether it is a crime or not? The following excerpts from your blog are of course the source of my confusion.
re.
"Professor Freeman is of course correct that in South Carolina it is unethical to threaten criminal prosecution solely in order to gain an advantage in civil litigation; the ABA Model Rules of Professional Conduct do not contain such a prohibition. Professor Freeman may also be correct that it may be a crime, at least in some states, to threaten criminal prosecution to gain an advantage in civil litigation."
Q. is it or not in SC?
re. "As most plaintiffs' lawyers doubtlessly realized, crying "Blackmail!" is a favorite tactic of those lawyers and clients who would hide, rather than find, the truth."
re. "No reported South Carolina case has ever held that a lawyer representing a client has committed blackmail or extortion by offering to settle a dispute before filing or amending a complaint; although no reported South Carolina case has dealt with that precise issue, several cases do hold that lawyers have immunity for their acts in representing clients and cannot be liable to the opposing party for acting as lawyers." See, e.g., Douglass ex rel. Louthian v. Boyce, 244 S.C. 5, 542 S.E.2d 715 (2001) ("an attorney is immune from liability to third persons arising from the attorney's professional activities on behalf and with the knowledge of the client, absent an independent duty to the third party").
Please Note: Not only "threatening" but actually filing an amended complaint to include blackmail subsequent to the criminal charges filed via a second attorney.
Interesting also that BC Solicitor Duffy Stone had declared the blackmail charge as "unfounded".(?)
Please advise, Roger Franklin James/Publisher/the rail/HHisland
Roger,
I think the main point is that you can't threaten crimminal prosecution. You can *do* it, but you can't *threaten* it.
If you have further questions on this, please talk to your lawyer about it.
