A few days ago I reported on the case of Miguel Mendoza v. Reed K. Hamzeh, which found that an attorney’s demand letter amounted to extortion since it threatened criminal prosecution if money was not paid. The threatened party turned around and sued for civil extortion, and defeated the anti-SLAPP motion brought by the attorney who sent the letter.
Writing about that case got me thinking (contrary to the belief that no thinking goes into my writing). I have over the years seen a number of letters from attorneys threatening criminal prosecution. Should I have been advising the clients who received these demand letters to sue for civil extortion?
Thankfully my research was streamlined by a reader who graciously pointed me to Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426-428. That case, and others I found, held that a civil action for extortion does in fact exist, but that like most torts requires a showing of damages. More specifically in the case of civil extortion, the extortion money must have been paid in order for there to be damages. Thus, based on my limited research, in the case of a garden-variety demand letter from an attorney that steps over the line and threatens criminal prosecution, there would not be a viable action for civil extortion.
That does not necessarily get the attorney off the hook. The State Bar might still decide to purse the violation, and a criminal prosecution would still be possible. Also, the case might still be pled as an intentional infliction of emotional distress or some other basis. Also, as seen in Flatley v. Mauro and now Mendoza v. Hamzeh, damages or not the threatened individuals are no doubt taking great satisfaction in turning the tables on the threatening attorneys.
In my brief research on the issue, I came across the interesting case of Libarian v. State Bar (1952) 38 Cal.2d 328, where the State Bar did take action against an improper demand letter.
The case involved an attorney named M. Stephen Libarian (bar number 13250 – wow!). Mr. Libarian, who has since passed on, appears to have been a reasonable guy, but apparently just got caught up in the moment as a zealous advocate, as acknowledged by the dissenting opinion in this case. In the case at hand, he represented Abe Siegel in an action for unpaid wages. The case went to trial, and Libarian was apparently so frustrated by what he believed to be the perjured testimony of the employer, that following the trial he wrote a letter to the opposing attorney which stated:
This criminal act of your client will be a basis for a new trial and also for a criminal complaint. . . . Here is my offer. Let your client pay Mr. Abe Siegel for 2 days’ work, or 16 times $2.25, the total of Thirty Six and no/100 Dollars, and his perjuries will remain unpunished. . . . I must receive your check for $36.00 plus $6.50 court costs I had advanced out of my own pocket, that is to say the sum of Forty One and 50/100 Dollars, on the 31st. day of October, 1950. If you fail to send said $41.50 until midnight of Tuesday, the 31st. day of October, 1950, on the 1st. day of Nov. 1950, I’ll file a motion for a new trial, and my client will be in the District Attorney’s office to file a complaint for perjury against your client.
Even in 1952, $41.50 was not a lot of money, so it appears that this was more a case of righteous indignation and less of civil extortion. Nonetheless, the Supreme Court ordered Libarian suspended for six months, with the sole dissenting Justice stating that a reprimand would have been sufficient.