Legal Extortion

Scott Greenfield of Simple Justice mentions a fascinating case out of New Hampshire, where a lawyer crusading for justice in haircut pricing found himself on the wrong end of a “misdemeanor theft by extortion” jury verdict. The jury apparently found it implausible that the lawyer, a man, was as mentally anguished by the disparity as his demand letter claimed. Greenfield asks the following:

Where do we draw the line? People often feel the “lawyer letter,” that demand that you pay money “or else” or stop doing something “or else,” is extortionate. After all, the express threat is “pay me or pay to go to court and then pay me.” There’s certainly something extortionate there.

The question deepens when it’s no longer a matter of threatening to take someone to court if they don’t settle a claim, but when it reaches the point of becoming a crime. Does it turn on the lawyer’s good faith? Does it turn on whether the claim has a reasonable basis in law?

These strike me as the right questions to ask. I share Greenfield’s sense of unease at an extortion claim here, though what strikes me as a more appropriate remedy (100 hours of pro bono service for those afflicted by similar letters?) might be considered more severe by some. I’ll mention some more provocative thoughts on the nature of coercion below the fold. . . . .


I’m still working my way through the works of Robert Lee Hale, the great legal realist who helped lay the theoretical foundations for the New Deal. He tries to show the universality of coercive force in daily life. For example, in one of his leading essays, Coercion and Distribution in a Supposedly Non-Coercive State, he states:

If an act is called “coercion” when, and only when, one submits to demands in order to prevent another from violating a legal duty, then every legal system by very definition forbids the private exercise of coercion–it is not coercion unless the law does forbid it. And no action which the law forbids, and which could be used as a means of influencing another, can fail to be coercion–again by definition. Hence it would be idle to discuss whether any particular legal system forbids private coercion.

***

[I]t seems better, in using the word “coercion”, to use it in a sense which involved no moral judgment. But popular feeling sometimes makes another distinction. If I plan to do an act or to leave something undone for no other purpose than to induce payment, that might be conceded to be a “threat.” But if I plan to do a perfectly lawful act for my own good, or to abstain from working for another because I prefer to do something else with my time, then I take payment for changing my course of conduct in either respect, it would not be called a threat.

***

[Ultimately,] the income of each person in the community depends on the relative strength of his power of coercion, offensive and defensive. . . . In fact it appears that what [is often called] the “productivity” of each factor means no more nor less than this coercive power.. . . . Not only does the law of property secure for the owners of factories their labor; it also secures for them the revenue derived from the customers. The law compels people to desist from consuming the products of the owner’s plant, except with his consent; and he will not consent unless they pay him money. They can escape, of course, by going without the product. But that does not prevent the payment being compulsory, any more than it prevents the payment of the government tax on tobacco from being compulsory. The penalty for failure to pay, in each case, may be light, but it is sufficient to compel obedience in all those cases where the consumer buys rather than go without.

Hale may take things too far; if coercion is everywhere on his account it may well be nowhere in others. (It’s no surprise that Duncan Kennedy’s article “The Stakes of Law” connects Hale and Foucault, and the latter was critiqued by Charles Taylor (in “Foucault on Freedom and Truth”) for seeing the exercise of power in so many situations that he essentially rendered the concept meaningless.). Nevertheless, the recent extortion ruling that Greenfield mentions shows that an expansive concept of coercion may be taking root in popular consciousness. The real question is whether lawyers should be its target, or groups with far more effective power to set the “rules of the game.”

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

Frank accepts comments via email, at pasqresearch@gmail.com. All comments emailed to pasqresearch@gmail.com may be posted here (in whole or in part), with or without attribution, either as "Dissents of the Day" or as parts of follow-up post(s). Please indicate in your comment whether or not you would like attribution, or would prefer your comment (if it is selected for posting) to be anonymous.

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30 Responses

  1. Scote says:

    The degree to which demand letters are extortionate is a very timely matter to investigate. Such letters–sometimes called “Heart Attack” letters–are designed to scare people, and scare them into capitulating fully, immediately and without seeking legal council.

    We can see examples of this in the demand letters sent by the RIAA to those it has accused of filesharing claiming–falsely–to have all the necessary evidence to prevail at trial and demanding a non-negotiable settlement in the $3-5,000 range or face ruinous and relentless prosecution by a multi-billion dollar industry for up to $150,000 per song. There is at least one lawsuit against the RIAA for just such tactics, and it is important that lawyers not get a special lawyers exception from extortion laws.

  2. Scott Moss says:

    When a business is threatened with a discrimination suit, it is 99.99% of the time a terrible idea to bring a counter-suit for extortion — because the “extortion” claim is very very likely to fail (this case is an exceptionally rare exception), whereas there’s a decent chance (1 in 4? 1 in 2? depends…) the extortion counter-suit is an unlawful act of retaliation against a claim of discrimination. Those sorts of retaliation claims do win (I have the string cite).

  3. shg says:

    Now I wish I had titled that post “One Really Bad Hair Day.”

    Thanks Frank.

  4. David Hardy says:

    It may be depend on what else was in the letter. Arizona has a very broad extortion statute, and so our training is:

    You can always threaten to sue. Settling a claim is not extortion. But

    NEVER say anything like by settling you will avoid bad publicity. That cross the line.

  5. cirby says:

    I wonder how long it will be until we see widespread demand for the return of “barratry” as a criminal charge, nationwide…

  6. Brett says:

    Hale’s theory is bunk–and every jurist who uses it has introduced a great deal of coercion into a nation that is supposed to be free.

  7. JohnMc says:

    I am no lawer and haven’t slept at the holiday Inn. But two rules should apply to everything that a lawyer does —

    1) Was the client materially harmed by another?

    2) If (1) is not operative then do no harm to the other party irrespective of the client wishes.

    Do otherwise and we, The Bar, yank your license.

  8. Fat Man says:

    Duncan Kennedy’s article “The Stakes of Law” connects Hale and Foucault, and the latter was critiqued by Charles Taylor (in “Foucault on Freedom and Truth”)

    If all the works of those guys were to evaporate, by some miracle, the world would be a better place.

  9. It strikes me that the problem is not lawyers’ demand letters but the underlying legal rules. After all, a demand letter that rests on no cognizable legal claim is not much of a threat.

    Here, in California, for example, there used to be quite a cottage industry of two-bit shysters using California Business and Professions Code Section 17200 et seq., the so-called Unfair Competition Law, to extrort settlements out of small businesses. One big problem was that the statute authorized plaintiffs who had never suffered any personal loss or injury to sue on behalf of the “general public.” Indeed, it allowed recovery upon a mere determination that the challenged conduct was “unfair” or “likely to deceive a reasonable consumer,” without any proof of actual injury to anyone. Another was that such plaintiffs were not required to meet other traditional class action requirements. The pleading requirements and standards of proof set out in the statute also were very lax.

    The solution was not to ban lawyers from sending out demand letters. The solution was to amend the underlying law. A few years ago, Proposition 64 amended the UCL to require the plaintiff to show he suffered an actual injury as a result of alleged unfair competition. Because Proposition 64 cross-references California’s class action statute, all representative actions under the UCL must meet all regular class action requirements. All of which went a long way towards solving the problem.

    Put another way, the problem may not be that we are overlawyered, but simply that we are overlawed. See Philip K. Howard’s The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom or Walter Olson’s The Rule of Lawyers. If you want to get rid of demand letters, prune the tree of law.

  10. bc says:

    In an earlier time, lawyers restrained themselves from assymetrical warfare (and that’s what it is in our society when a lawyer sues a non lawyer) because bar ethics codes sternly warned against just such behavior. Today, much of this has broken down, and so the written law and juries must step in to formalize what once was handled by ethics considerations.

  11. Mark in Texas says:

    What little I know about law is mainly from taking the CHL class. In that class it was explained that if you point a gun at somebody without sufficient cause i.e. reasonable fear of death or maiming, you have committed a crime. It seems like some similar legal principal could be applied to aiming a threatening heart attack letter at somebody without sufficient cause.

  12. Moneyrunner says:

    It strikes me that the problem is not lawyers’ demand letters but the underlying legal rules. After all, a demand letter that rests on no cognizable legal claim is not much of a threat.

    On the contrary, the laws are so complex and cover virtually the entire spectrum of human existence so that non-lawyers have no idea what legal claims may exist. The assumption that there is a legal basis for a legal threat cannot be dismissed by a layman without resort to a lawyer. This in and of itself creates a financial burden. Therefore the threat by a lawyer is as much a threat, although of a different nature, as having a member of the mafia tell you that he is concerned about your health and that of your family.

    For that very reason, these kinds of threats should be dealt with by the bar and punished severely because they are by their nature extortionate.

  13. Ken Hahn says:

    If a lawyer threatens a person with a lawsuit that has no reasonable basis in law then that should be considered extortion. I believe it should be a criminal offense.

  14. Bozoer Rebbe says:

    Let a lawyer have a taste of his own medicine and the legal blogs take heed. Oh my, you mean the law applies to them too?

    You have no idea how much regular folks enjoy seeing lawyers like this one or the tool who sued that dry cleaner for millions get smacked down. Those of us who are not members of the bar are getting rather tired of the legal system being treated as a club, in both senses of the word. Lawyers use their privileged position as members of the club of lawyers to club non-lawyers into submission.

    Judges resent defendants who argue pro se. They’ll reject the same deal they’ll agree to if the defendant is represented by a member of the club.

    Unfortunately, the average guy or gal is SOL. You hire an attorney, who then negotiates with the prosecutor or judge. Since the attorney wants to maintain a good working relationship with the for the sake of future cases, he or she does not argue or negotiate as vigorously as they could. After all, if you alienate the prosecutor it could affect future income. If you alienate the judge, you won’t get court appointments to represent.

    Lawyers control the criminal justice system, the tort system and they control most of legislatures. Many regard non lawyers with derision, or at least those non lawyers who try to horn in on their little club.

    There should be a 50% Federal surtax on attorney’s fees. If the tobacco companies have to cover the costs society bears from their products, I say lawyers should follow the precedent set by their colleagues in the tobacco litigation. So many things including medicine are much more expensive because of litigation and the threat thereof. Let’s start making lawyers pay for their costs to society. Taxing personal injury and other tort fees would generate about $40 billion a year, which could buy a bunch of folks some decent medical coverage.

  15. rj says:

    All letters from lawyers to non-lawyers should be considered extortion unless proven otherwise.

  16. Frew says:

    Let’s just kill all the lawyers and sort the rest of this ‘effin stuff out later.

    Sorry, but the picture of a bunch of lawyers trying to decide to what extent they can “ethically” threaten and intimidate their fellow citizens rubs me the wrong way.

  17. Frew says:

    Let’s just kill all the lawyers and sort the rest of this ‘effin stuff out later.

    Sorry, but the picture of a bunch of lawyers trying to decide to what extent they can “ethically” threaten and intimidate their fellow citizens rubs me the wrong way.

  18. David says:

    How about some standard text to add to any letters that go out? Something similar but not quite the same as:

    You have the right to hire an attorney. This letter does not require that you communicate with our office. Should we not hear from you or your appointed attorney, you will receive a summons to court.

    Or whatever and by whatever I mean anything that would help the “victim” seek legal aid, paid or otherwise.

    Hey Rebbe:

    Guess who makes the laws that govern who gets to be an attorney? How’s that for a racket? AND lawyers also make the laws as to what accounts as an accredited law school. I suppose we could sue our legal system as a trust, but where we get a lawyer?

    Where did Lincoln go to law school? Everyone knows. Shame shame.

    Oh well. From time to time I need a lawyer. Then they’re OK in my book.

  19. Gail says:

    In New York City, just two weeks ago, Bloomberg signed a law outlawing a much more flagrant abuse of power by lawyers against the lawyerless: it’s now possible for tenants who’ve been harassed by baseless litigation by landlord lawyers (the scum of the legal system in most cases) to counterclaim for harassment and collect monetary damages. (They have to have brought at least two baseless lawsuits against the tenant.)

    Granted, the damages are limited to just a few thousand bucks, and the pressures on tenants in the city are enormous, but it’s a weapon to fight back with (albeit a slender one). In the buildings our landlord owns in Little Italy, if he can force a tenant out, he can gut the apartment and put it on the market at any rent he chooses, and he’s going for a 300% increase. That’s three hundred percent. So an eviction can net him an additional $36,000/year.

    But we do what we can. Lawyers here generally cost around $300 per hour. The legal aid people, though better than nothing, will sling you through the system and give you bad advice just to be able to “rack the case” and keep moving. They don’t care about how fair the settlement is, really; they aim to keep people from being evicted, and some of the more egregious rent-gouging.

    But they’ll also tell you to throw the landlord a bone when he’s not even entitled to it under the law. Happened to me. And when I called them on it after the fact, they got angry and tried to convince me that I was wrong: essentially arguing the landlord’s case. In spite of the clear wording of the applicable regulation under the Rent Stabilization Code. Unbelievable.

    Their excuse was that “things aren’t usually settled that way in Housing Court.” My reply, “well, they ought to be, because this is the law. And it’s completely unambiguous.”

    So they won’t represent me going forward: I’ve been pitched back into the ocean. And my case is typical; many friends have faced the same harassment. Lawyers trump up charges against tenants, and the tenants have to go to court to disprove the charges, over and over again. The game is to exhaust you and grind you down. It’s brutal. And they use all the bullying and intimidating tactics they can, especially in court.

  20. NikFromNYC says:

    Our WHOLE political culture is populated by LAWYERS.

    The only good alternative seems to be B movie actors.

    None of those are offered very often though.

    Just people who write gibberish, so we have to pay them money, exactly because simple moral issues have been wrapped in a mouse’s paradise of tangled ribbons of thought itself.

  21. Jenn says:

    Often, the WORST THING YOU CAN DO IS RESPOND TO A LAWYER’S LETTER. Throw it away, shred it, pretend you never opened it. Especially if you’ve been involved in an accident. The letter itself is designed to trap you and drag you into a hellish situation you could have avoided… If you had just IGNORED the letter.

  22. stealthpundit says:

    If I were to get a threatening letter from an attorney demanding I pay/stop as a result of a perfectly legal activity I should be able to either sue the attorney for their action or to have them charged with extortion.

    They are taking advantage of their knowledge of the law – and my lack of knowledge – to their advantage. Only when the attorney themselves, and not just their clients, are held responsible for their actions will the temptation to abuse their position be eliminated.

  23. BM says:

    Hale’s theory is crap. By his theory if I work hard, save, pay for a good education for my kids, then when those kids decide which employer to work for they are coercing those employers to pay them higher wages because of what they have to offer. Total crap, only a lawyer could think that up.

  24. Smarty says:

    I like that lawyers are getting looked at for extortion.

    I have a friend in a divorce. He got hit with a fraudulent restraining order. Her lawyer offered to drop it if he negotiated away visitation.

    He received numerous threats of “if you don’t do this, then the judge may end up ordering that”-when you use the perception of the injustice of the court to coerce someone into taking a loss, isn’t that extortion?

    How about when a lawyer says “Give my client $2 Million (minus my $600,000 fee)or we will sue you for serving her hot coffee”, isn’t that extortion? I bet it feels like it, and lawyers are great at suing people because they made someone “feel” a certain way. Lawyers argue every day that if someone feels offended, threatened or discriminated against, that the other person must therefore be offensive, threatening or discriminatory. So if someone feels extorted, then the lawyer in question must be an extortionist.

  25. Smarty says:

    Gail, your real problems are based on the marxist rent control laws. It creates a black market for apartments, and every moron on the planet can understand that price controls are just as damaging to the economy and social fabric as price fixing.

    All the money on the table attracts sleazebag lawyers. Get rid of the rent control, move out of the city if you cannot afford it.

  26. Totally A Lawyer says:

    All lawyers are extortionists or sleazebags who game the system. The clients are blameless. The plaintiffs attorney firm that took the McDonald’s coffee scalding case referenced above are a bunch of extortionists. Unless you think that McDonald’s boiling their coffee extra hot to squeeze a few extra dollars out of a brewed pot is wrong. Then it’s McDonald’s lawyers who are sleazebags for defending a heartless monolithic corporation that risks disfiguring its customers over a couple of lousy dollars’ profit.

    And those poor RIAA defendants, being extorted by a bunch of manipulative lawyers. Except for the the defendants who actually stole music, they deserved everything they got. But only those folks. The lawyers should know the difference.

    Lawyers are a reflection of society and the clients who hire them. Next you’ll blame the greedy Zionist bankers for causing your interest-only ARM mortgage to be foreclosed on.

  27. Smarty says:

    I blame lawyers for being on the various judicary committees, writing the laws that encourage payoffs to the irresponsible. I blame lawyers for being the single largest political contributor to Democrats, the official party of the irresponsible and the victimology lifestyle.

    I blame lawyers who become judges and think that overseeing a system designed to keep lawyers employed at the expense of everyone else in the courtroom (taxpayers included). I blame lawyers for what they call “ethics”.

    I blame lawyers who think that is is morally OK to use tricks and technicalities to free dangerous people. I blame lawyers who help terrorists pro-bono, who go after our soldiers for making the wrong calls in the heat of battle, for suing to make America socialist (ACLU and it’s ilk).

    The legal profession has become a parasitic class. The law should be accessable to the common man, but is no longer. We do not have a Justice system, we have a legal system where the skills, connections and or balls of the lawyer matter more than the facts. Oh yeah, throw in the personal leanings of the judge.

  28. Sha says:

    There should be consequences for bringing a civil suit to trial that results in a finding for the defendant. The defendant was, after all, materially harmed by the suit.

    Some allowance to pay defendant’s legal fees, at least up to a percentage of the cost to the plaintiff’s legal counsel (time spent?) would be appropriate, or a barring from plaintiff counsel taking a percentage of judgment in lieu of fees paid by the plaintiff, would help prevent frivolous suits.

    In addition, it’s not at all appropriate for the civil system to be used to prosecute cases that the state has no interest in prosecuting. In particular, with regards to copyright infringement, if it’s indeed illegal, then a lawbreaker should receive a criminal penalty first and foremost. For illegal activity, a civil penalty apart from a criminal one is inappropriate in any context.

    The RIAA should take its case first to a PA for criminal prosecution before it starts sending out all those nasty letters. The inadequacy of our criminal prosecutors to handle this kind of load (to enforce the law) is no excuse to passing the burden for deterrence off to large companies who are “materially harmed” any more than it is my job, as a public citizen, to try a civil suit against someone who breaks into my house.

  29. Richard says:

    Reagan-Bush-Bush appointed 500 judges who failed to uphold the Truth & Lending Act/Laws. Global corporations-lawyers hoarded-drained the US cash flow, for profit. Bush granted immunity to corporations. For the poor can not afford their courts. Solution: “trickle up economics.” De-inflated costs minus inflated mortgage costs = Government issues a check for the difference, for a long term recovery. The judges who failed above, are to be removed with prejudice. The truth is now within seconds…cell phones.

  30. Paul says:

    Just a quick question on this discussion , Say you have an employee that has a lawsuit that he has been pending for new meres years against a company and uses this as a coercion tactic if he is fired he will carry threw with the suit. Is this blackmail or just coercion?