This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

special / Legal Ethics

My big mouth!

Much of an attorney's job is communication. Attorneys may write demand letters to opposing parties, or hold press conferences to vindicate their clients to the public. Lawyers must consider when they or their client could become civilly or even criminally liable for these communications. Indeed, on Monday Michael Avenatti, famous for representing Stormy Daniels against the president, was arrested on federal charges that he attempted to extort $20 million from Nike by threatening to release damaging information about the company.

Flatley v Mauro

Attorney D. Dean Mauro sent famed dancer Michael Flatley a demand letter on behalf Tyna Marie Robertson alleging that Flatley had raped her in Flatley's Las Vegas hotel room. Flatley v. Mauro, 39 Cal. 4th 299, 308 (2006). The letter urged Flatley to contact Mauro directly to negotiate a monetary settlement; if not, the letter indicated that Mauro would sue Flatley for punitive damages, disclose the rape allegations in court and therefore to the media, and that information regarding immigration and other matters would be "exposed." Id. at 309. The letter referred to an unspecified case in which a plaintiff was awarded $100 million for punitive damages, made abundant use of bold and capitalized fonts, and imposed a non-negotiable timeline of 28 days to reach a settlement. Id. at 308-09. Mauro thereafter badgered Flatley's counsel, Bertram Fields, with numerous phone calls, threatening to "go public" with the story and "ruin" Flatley unless he agreed to pay Mauro and Robertson "seven figures." Id. at 311.

Flatley responded by suing Robertson and Mauro for various claims, including civil extortion. Mauro sought to strike Flatley's complaint with a motion under California's anti-SLAPP statute (Code Civ. Proc. Section 425.16), which is a procedural move used to dismiss lawsuits that interfere with constitutionally protected speech. The California Supreme Court denied Mauro's motion and allowed Flatley's lawsuit to proceed, reasoning that Mauro's letter was not protected by the anti-SLAPP statute because it constituted criminal extortion as a matter of law. 39 Cal. at 311. The court held that Mauro's behavior was extortionate because his threats to "go public" with the accusations were coupled with an immediate demand for a seven-figure sum and because he insinuated that he would report Flatley to tax and immigration authorities for conduct entirely unrelated to Robertson's claims. Id. at 330.

Before the case was completed, Mauro resigned as a member of the Illinois Bar.

Malin v Singer

Attorney Martin Singer sent restaurant and nightclub owner Michael Malin a demand letter on behalf of Malin's business partner Shereene Arazm, demanding that Malin return allegedly embezzled funds. If not, Singer would proceed to file a lawsuit against Malin, which would not only allege that Malin had embezzled funds from the business, but also that Malin used those funds to "arrange sexual liaisons with older men such as 'Uncle Jerry', Judge -----, a/ka 'Dad'..., and many others." Malin v. Singer, 217 Cal. App. 4th 1283, 1289 (2013). Malin responded to this demand letter by suing Arazm and Singer for a number of causes of action, including civil extortion.

Singer and Arazam filed an anti-SLAPP motion to strike Malin's complaint under the theory that their demand letter was protected speech. The trial court denied Singer's motion, holding that Singer's demand letter amounted to criminal extortion and thus was not protected under the anti-SLAPP statute. Malin v. Singer, BC466547 (L.A. Sup. Ct., Nov. 29, 2011). Singer appealed the trial court's decision, and the California Court of Appeal upheld the anti-SLAPP motion. The appellate judge distinguished Singer's legitimate demand letter from the extortionate demand letter in Flatley on the grounds that "Singer's demand letter did not expressly threaten to disclose Malin's alleged wrongdoings to a prosecuting agency or the public at large." 217 Cal. 4th at 1298. Singer's demand letter though it included salacious details about Malin's use of company funds was not extortionate because the manner in which Malin used the funds was "inextricably tied to Arazm's pending complaint." Id. at 1299.

Though Singer evaded liability and was awarded $323,689 in attorney fees following his successful anti-SLAPP motion against Malin, the decision should make lawyers wary of writing demand letters that may be too demanding, for when the lawyer is named in litigation, a potential or actual conflict of interest is created, which could require the lawyer to withdraw from representation.

Mendoza v Hamzeh

Attorney Reed Hamzed sent Miguel Mendoza, the manager of a print and copy business owned by Hamzed's client, a demand letter seeking repayment of $75,000 relating to Mendoza's alleged fraud and breach of contract. Mendoza v. Hamzeh, 215 Cal. App. 4th 799, 802 (2013). If Mendoza didn't pay the $75,000, Hamzeh would "be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud." Id. The court ruled Hamzeh's letter to be civil extortion because the demand of $75,000 was directly coupled with a threat to report a crime. Id. at 806. Threatening to report a crime with a demand for money in exchange for silence is extortion. Id. at 805.

Moreover, such conduct will subject an attorney to State Bar discipline as it violates the Rule of Professional Conduct Section 3.10: "Threatening Criminal, Administrative, or Disciplinary Charges (a) A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute."

Dickinson v Cosby

Martin Singer also represented Bill Cosby. After Janice Dickinson appeared on "Entertainment Tonight" with claims that Cosby had drugged and raped her, Singer sent a demand letter to the executive producer of "Good Morning America," which was planning to run a segment interviewing Dickinson about her claims. Dickinson v. Cosby, 17 Cal. App. 5th 655, 662 (2017). The letter stated that Dickinson's story was "fabricated and is an outrageous defamatory lie," and explicitly threatened litigation if "Good Morning America" moved ahead with the segment. Id. Singer sent similar demand letters to several other media outlets who were contemplating similar coverage of the Dickinson matter. Id. Dickinson responded by suing Cosby and Singer for defamation, arguing that Singer's assertion that Dickinson made up her story was false and damaging to her reputation. Id. at 655.

Cosby and Singer attempted to stop Dickinson's defamation suit with an anti-SLAPP motion. Id. A successful anti-SLAPP motion to stop a lawsuit requires that (1) the plaintiff's lawsuit targets speech protected by the First Amendment and (2) that the plaintiff is not likely to succeed on the merits of his/her lawsuit. Id. at 666. Cosby and Singer argued that Dickinson's suit could not possibly prevail on its merits because Singer's demand letter was subject to the litigation privilege, which protects a lawyer from civil liability for communications relating to litigation. Id. at 667; see Civil Code 47(b). The court held that litigation privilege did not apply to Singer's letter because it was not written in good faith contemplation of a lawsuit; Singer selectively sent the demand letter to media outlets who had yet to run segments on Dickinson's rape allegations, and then he did not proceed to sue once the media outlets actually ran those segments. Id. at 684. The court concluded that Singer's demand letters were merely a scare tactic, and that he never actually intended to sue the media outlets.

This is not the end of the story. On remand, Singer successfully asserted that the constitutional malice standard of defamation under New York Times v. Sullivan, 376 U.S. 254 (1984), was applicable, and as this was a SLAPP motion, Singer was entitled to attorney fees. The parties then settled with a "walkaway": Dickenson did not appeal, Singer waived fees. However, Cosby was not successful in knocking the defamation case out, and he is currently in the court of appeal challenging the ruling.

Of note is that once Singer got sued in the same action, he withdrew as Cosby's attorney.

There's more: Singer was also implicated in McKee v. Cosby, 874 F.3d 54 139 S. Ct. 675 (1st Cir. 2017) (cert denied 2019), where Katherine McKee sued Bill Cosby for defamation over letters Singer sent to the New York Daily News regarding an interview in which McKee accused Cosby of raping her. Singer's letter attacked the credibility of McKee's story and the credibility of the newspaper. The 1st Circuit dismissed McKee's claims on the basis that she was a limited purpose public figure -- a public figure needs to prove that a defendant acted with "actual malice" in making false statements in order to prevail in a defamation action, and McKee failed to meet that standard. McKee v. Cosby, 874 F.3d 54, 63 (1st Cir. 2017). The Supreme Court denied certiorari, with Justice Clarence Thomas recommending the malice rule be reexamined. McKee v. Cosby, 139 S. Ct. 675, 680 (2019).

Rothman v Jackson

Michael Jackson was sued civilly for molestation. At an August 1993 press conference on the courthouse lawn in Santa Monica it was asserted that opposing counsel attorney Barry Rothman and his clients had knowingly and intentionally made false accusations against Jackson in order to extort money from him. Rothman brought a defamation claim against Jackson and his companies, Bertram Fields and his law firm, Howard Weitzman and his law firm, and notorious private investigator Anthony Pellicano. Rothman v. Jackson, 49 Cal. App 4th 1134 (1996).

The defendants argued for no liability due to the litigation privilege as the statements were made in anticipation of a possible criminal prosecution against Jackson, and were therefore protected. Id. at 1145. The court rejected this argument, holding that litigation privilege applies to statements that have a "functional connection" with potential litigation, not merely a connection to the subject matter of litigation. Id. at 1146. Here, the statements were made to members of the press, who had "no legitimate connection with any litigation that could be anticipated between" Rothman and the defendants. Id. at 1156.

The court observed: "we are frankly astonished by the contention made by Fields that celebrities and their lawyers must litigate their cases in the press because the public expects it. Fields argues that, because of such public expectations, 'media attention becomes part of the forum of litigation ...,' and to deny celebrity litigants protection for statements made in this 'forum' would contravene the policies of the litigation privilege. We expressly reject this argument." Id. at 1149.

Readers should remember this maxim from the Rothman court: "attorneys who wish to litigate their cases in the press do so at their own risk." Id. at 1148.

Rules of Professional Conduct

California Rule of Professional Conduct Rule 3.6(a) states that "a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Section 3.6(c) clarifies that "[n]otwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity."

Conclusion

When communicating on behalf of a client, ensure the client has a legitimate legal claim, truly intends to litigate, that the communication is functionally related to anticipated litigation, and whether the client could get sued even if the lawyer is immune (and which might lead to a malpractice claim in as much as the client got sued for statements by the attorney). Attorneys need be well-versed in the case law lest their big mouths get them in big trouble.

#432

Ben Armistead


Related Tests for Legal ethics

special/Legal Ethics

How not to be a lawyer

By Mark L. Tuft

special/Legal Ethics

Restoring civility in divisive times

By A. Marco Turk

special/Legal Ethics

Ethical duties and data breaches

By Alison Buchanan

special/Legal Ethics

The new conduct rules: a snapshot

By Wendy W.Y. Chang

special/Legal Ethics

ANALYSIS: Rule 1.15

By David C. Carr

special/Legal Ethics

The entirely new rules

By Neil J Wertlieb