All people should want the strongest representation their rights deserve. If you need a litigator or need to protect your rights, your family or your business, you don’t want weak or too nice—you want tough, focused, demanding, smart representation from your criminal defense attorney.
Being smart is the key. Bullies work out in schoolyards and in courtrooms, and especially in difficult times, people take advantages—of your rights, of your contracts, of your business, of your family. Defending against people pushing for advantage, pressing for your own rights in uncertain times, and confronting a bully without becoming one, takes smarts. Lawyers most always make demands, strong demands, loud demands, and counteroffers and more demands, on the way to getting to a court decision or a settlement or both. When does coming on strong get to be too much? When does being tough cross the line into extortion?
Michael Avenatti, a lawyer who became tabloid fodder by representing porn star Stormy Daniels in her relations with Donald Trump, has left us lessons if not answers on when a lawyer crosses the line.
Sitting in jail as “a danger to the community,” Avenatti is contemplating his felony conviction for making a $20 million demand upon Nike that a jury found to be extortion. Many other disputes start much like Avenatti’s client’s issues began. Pay me or I’ll sue you, said nicely or not, is pretty common. Pay my client or else I’m going to the press. Pay me or I’ll rate you a zero on every google, yelp and consumer site I can find. Pay me or else I’m going to put it out there online all over the place that you are a thief. Pay or I’ll file criminal charges. Pay or I’ll do all of the above.
Extortion can be defined as the obtaining of property from another, with his or her consent induced by a wrongful use of force or fear. Fear, for purposes of extortion, may be induced by a threat, either to accuse the individual threatened of any crime, or to expose the threatened individual to disgrace. See Cal. Pen. Code, §519.
A threatened action does not have to be illegal for extortion to have occurred. If a person threatens to report an actual crime to the police, for example, the action that is threatened – the reporting of a crime – is not illegal. However, when the threat is coupled with a demand for money, the threat may cross the line and become extortion. “It is the means employed to obtain the property of another which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” Flatley v. Mauro (2006), 39 Cal. 4th 299, 303. In other words, it is the use of fear as a weapon in order to obtain money or property from another which the law condemns, even if the money or property is rightfully owed.
Threatening criminal prosecution in an effort to gain some advantage in civil litigation can be abuse of process as well as extortion. Just like in Avenatti’s case against Nike, sprinkling in legal terms like “settlements” and “claims” and “fees” does not excuse the act of extortion. The fine line between “playing hardball” and a “shake down” is one that the Court addressedin Miguel Mendoza v. Reed Hamzeh (2013), 215 Cal. App. 4th 799. In that case, attorney Hamzeh was seeking to recover money owed to his client by Mendoza. He wrote a demand letter to Mendoza’s attorney stating that, if Mendoza did not pay the money owed, Hamzeh would proceed with filing a civil complaint, as well as reporting Mendoza to the Attorney General, the District Attorney, the Internal Revenue Service, and the Better Business Bureau. The attorney was sued for civil extortion. It is irrelevant whether Mr. Mendoza indeed owed the money, or even whether he should indeed have been reported to the Attorney General, District Attorney, IRS, etc. What the attorney did wrong was to use the fear of that reporting to demand money from Mendoza.
Extortion is not only a criminal act, but a civil tort that a victim may address directly, with or without criminal law enforcement. California’s common law allows for a civil cause of action to recover damages due to extortion – including by the wrongful threat of criminal or civil prosecution. See Fuhrman v. California Satellite Systems (1986), 179 Cal. App. 3d 408, overruled on other grounds, Silberg v. Anderson (1990), 50 Cal. 3d 205. The related tort of abuse of process also is a civil action, marked by the actual filing of a lawsuit or the taking of other legal action, to achieve a purpose unrelated to the substance or merits of the legal action. To prove an abuse of process, a plaintiff must show that the defendant entertained an ulterior motive in using the legal process. See Coleman v. Gulf Insurance Group (1986), 41 Cal.3d 782, 792. “The gist of the tort is the misuse of the power of the court: It is an act done under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose. Younger v. Solomon (1974), 38 Cal.App.3d 289, 297.
If you are seeking strong representation as you should, or if you feel you have been the victim of extortion or abuse of the legal process, be smart. Contact experienced counsel who can represent you in the strongest way without crossing lines that jeopardize you or your rights. Contact the Boesch Law Group.
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