Divorce Lawyer Ethics: Threatening Criminal, Administrative, or
Disciplinary Action to Advance a Civil Cause
(The Get 'Em Over a Barrel Ethical Quandary)
By: Michael C. Peterson
As a California family law attorney, a canon of ethical conduct I must
adhere to is to be a zealous advocate - often within the context of high
and raw emotional conflict. I am required to do every act reasonably and
lawfully required to advance my client's position and achieve his
or her goals, and this devotion to my client's causes is one thing
I love about matrimonial law. In situations involving divorce, spousal
and child support, and custody particularly, this means directing my efforts
towards maximizing my client's financial and non-financial outcomes,
and navigating their emotional reactions which often include instructions
that I 'take no prisoners.'
In the 1992 movie "Night and the City," Robert DeNiro's character (a New York attorney who desired
to become a boxing promoter) expressed a sentiment I commonly hear about
how a "good" divorce attorney should act in achieving his or
her client's aims (and I am paraphrasing here): 'my job is to
get 'em over a barrel, and then get the settlement.' But, there
are all kinds of dangers and pitfalls by allowing that theme to dominate
California appellate courts are increasingly making it clear that divorce
lawyers are not gunslingers in 21st century equivalent of the wild, wild
West. "[Z]ealous advocacy does not equate with 'attack dog'
or 'scorched earth'; nor does it mean lack of civility ."
Marriage of Davenport (2011) 194 CA4th 1507, 1536.
Davenport affirmed $400,000 in monetary sanctions per
Fam. C. § 271 against a 75 year old wife
and her counsel in a $30 million divorce case that generated 19 court file volumes, a
35 page register of actions, eight discovery motions, three motions for
contempt against the husband, a $900,000 sanctions motion that contained
a 52 page declaration by the wife's attorney with 1,250 pages of exhibits.
The justices characterized wife's attorneys as "uncivil, rude,
aggressive, and unprofessional [and that such] conduct marred this case
from the very beginning" and spanked both attorney and client hard!
The obligation of family lawyers to uphold ethical codes of conduct, in
both speech and stratagems, is critical to the integrity of the profession
(the public has a very low opinion of lawyers in comparison to doctors,
teachers, and emergency personnel, as reflected in jokes and jabs), and
to individual client self-interest by keeping them out of financial and
other trouble, as
Davenport's monetary sanctions award emphasizes. Frankly, some clients - especially
the more narcissistic of them - feel that an attorney is not doing their
job right if they are not inflicting pain on the other side, but these
tend to fail to consider or simply ignore the damage this can do to themselves
(not to mention others, like children, or parents who may be footing the
legal bill). Others feel that they cannot secure a fair settlement unless
the other side is 'rocked onto their heels.' It is perfectly natural
to fantasize about ways to force the other side in high conflict divorce
proceedings to capitulate, but the trick is not to obey those Gollum like impulses.
CRPC 5-100 and Attorney Threats in Order to Advance a Civil Litigation Position
A common issue that comes up in the course of divorce litigation, and is
often asked (and sometimes demanded) by my clients, is whether to convey
a threat to report illegal conduct by the other party or attorney as a
tool for obtaining important concessions. For example, an opposing party
may have misrepresented facts on their tax returns, my client has knowledge/proof
about the misrepresentations, and the she/he wants to tell the other side
'if you don't give me $ X amount of spousal support for life,
I am going to turn you over to the IRS.' Or an opposing party might
commit a crime such as causing an
electronic tracking device to be placed on the other spouse's vehicle
in violation of Penal Code § 637.7, and the victim in turn may be tempted to communicate to the other side
words to the effect of 'give me sole legal and physical custody or
I will report the tracker to the police' (this is not what occurred
in our case).
These kinds of impulses, and the arguable leverage opportunities that one
might perceive arise, exist at the borders of zealous advocacy and other
ethical rules do fix a kind of frontier that cannot safely be crossed
- ultimately, it is the attorney for the client who needs to make the
correct executive decision for them both because, as
Davenport demonstrates, attorneys too can wind up footing the bill in terms of sanctions
or fees caused by getting lost in what Mr. Arnold has coined as
Lawyers, but not parties acting as their own attorney, must behave consistently
with the California Rules of Professional Conduct ("CRPC") or
face disciplinary outcomes ranging from reproval to disbarment. They are
the California Supreme Court's rules regulating attorney conduct.
There is a specific CRPC on the issue of using unethical threats - Rule
5-100. It provides:
"(A) A member shall not threaten to present criminal, administrative,
or disciplinary charges to obtain an advantage in a civil dispute.
(B) As used in paragraph (A) of this rule, the term "administrative
charges" means the filing or lodging of a complaint with a federal,
state, or local governmental entity which may order or recommend the loss
or suspension of a license, or may impose or recommend the imposition
of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature
but does not include filing charges with an administrative entity required
by law as a condition precedent to maintaining a civil action.
(C) As used in paragraph (A) of this rule, the term "civil dispute"
means a controversy or potential controversy over the rights and duties
of two or more parties under civil law, whether or not an action has been
commenced, and includes an administrative proceeding of a quasi-civil
nature pending before a federal, state, or local governmental entity." [Italics added].
In contrast, no prohibition comparable to Rule 5-100 exists in the American
Bar Association's Model Rules of attorney ethics.
So, where does Rule 5-100 tell us the train of zealous representation come
off the tracks? One key word in the 5-100 Rule is "threaten."
Another is "advance." Taken together with the rest of 5-100,
it is not improper for instance to
actually make a report about the opposition's illegal conduct to the appropriate
government agency, but it is improper for a lawyer to
communicate the potential reporting beforehand as a means of gaining leverage and concession to an issue in
the civil matter (which, of course, includes family law cases). As such,
in regard to examples above of illegal activities of the other party that
may come to light, there is nothing wrong or unethical about advising
the client to make a report to the IRS or to the police department (assuming
such reporting doesn't hurt the client's position or expose him/her
to unintended adverse consequences). But the line is crossed by using
or attempting to use the information against the Ex to 'get 'em
over a barrel.'
Moreover, threats to file a civil action (e.g. an emergency Domestic Violence
Restraining Order or a motion for guideline temporary spousal or child
support orders) unless a party's civil demands are met do not themselves
violate any statute or disciplinary rule. See Cal. State Bar Form.Opn.
1991–124, hypothesizing that there is nothing improper in an attorney's
letter to opposing counsel stating something to the effect that 'all
available legal remedies will be pursued against your client' unless
parties reach quick resolution/settlement on the civil issue involved
and in dispute.
Extortion and a Non-Lawyer's Threats in Order to Advance a Civil Litigation Position
Another consideration is that Rule 5-100 only applies to lawyers practicing
in California, California lawyers practicing in other jurisdictions and
their personnel, but not directly to unrepresented litigants or clients
acting on their own without direction from his/her attorney. See CRPC
Rule 1-100 and its implied exclusion of non-lawyers not employed/contracted
by lawyers. The problem, however, with non-lawyers using threats of administrative,
criminal or disciplinary action is that s/he may expose themselves to
criminal extortion charges under Pen. C § 518 (a felony, with a 2,
3, or 4 year potential prison sentence). And, of course, lawyers can fall
prey to such exposure as well. A recently published decision,
Mendoza v. Hamzeh (2013) 215 CA4th 799, 805, delves into the issue of a civil cause of action
for extortion in connection with a 5-100 violation.
California Penal Code § 518 provides:
"Extortion is the obtaining of property from another, with his consent,
or the obtaining of an official act of a public officer, induced by a
wrongful use of force or fear, or under color of official right."
California Penal Code § 519 provides:
"Fear, such as will constitute extortion, may be induced by a threat, either:
1. To do an unlawful injury to the person or property of the individual
threatened or of a third person; or,
2. To accuse the individual threatened, or a relative of his or her, or
member of his or her family, of a crime; or,
3. To expose, or to impute to him, her, or them a deformity, disgrace,
or crime; or,
4. To expose a secret affecting him, her, or them; or,
5. To report his, her, or their immigration status or suspected immigration
The California Supreme Court has said that extortion is a paradoxical crime
in that it criminalizes the making of threats that, in and of themselves,
may not be illegal; in many blackmail cases the threat is to do something
in itself perfectly legal, but that threat nevertheless becomes illegal
when coupled with a demand for money.
Flatley v. Mauro (2006) 46 Cal.Rptr.3d 606, 39 Cal.4th 299
Mendoza, a former employee brought a tort action against his employer's attorney
for causes of action of civil extortion, intentional infliction of emotional
distress, and unfair business practices. At the trial level, the defendant
attorney's anti-SLAPP motion was denied, and the appeal resulted.
On appeal, the
Mendoza court held that the lawyer's threat to report a crime to enforcement
agencies, coupled with a demand for money, constituted extortion even
when the employee in fact committed the crime and owed the money. In other
words, truth is not a defense to an extortion civil cause of action.
Mendoza court reasoned that extortion is "unprotected by constitutional guarantees
of free speech or petition." The crime of extortion is "…
the obtaining of property from another, with his consent ... induced by
a wrongful use of force or fear...." Pen.Code, § 518. The fear
element of Pen. Code 518 "may be induced by a threat, either: …
2. To accuse the individual threatened ... of any crime; or, 3. To expose,
or impute to him ... any deformity, disgrace or crime[.]" Pen.Code,
§ 519. Moreover, "[e]very person who, with intent to extort
any money or other property from another, sends or delivers to any person
any letter or other writing, whether subscribed or not, expressing or
implying, or adapted to imply, any threat such as is specified in Section
519, is punishable in the same manner as if such money or property were
actually obtained by means of such threat." Pen.Code, § 523.
Mendoza court analyzed the facts as follows: In "Hamzeh's demand letter
[he] threatened to report Mendoza "to the California Attorney General,
the Los Angeles District Attorney, the Internal Revenue Service regarding
tax fraud, [and] the Better Business Bureau," and to disclose the
alleged wrongdoing to Mendoza's customers and vendors if Mendoza did
not pay "damages exceeding $75,000." The
Mendoza court continued "[t]he fact Hamzeh did not list specific crimes in
the demand letter does not mean the threat is not extortionate."
Mendoza case involved a civil lawsuit for extortion against a lawyer, the same
kinds of issues and the same kinds of liabilities (both monetary and criminal)
can result against a non-lawyer who makes extortionate communications
in connection with anticipated or presently-existing litigation in terms
of a Penal Code violation. As such attorneys should be cautioned not to
make a statement to a client to the effect 'while I can't threaten
to call INS on your baby-daddy, there is nothing preventing you from doing
so in your conversations with him.' Horrible advice; this could not
only result in the client being criminally charged and/or sued for monetary
damages, it could also result in the attorney being sued for malpractice.
By the law, there is a kind of 'whistle-blower' exception to the
crime of extortion recognized in certain scenarios. For example, extortion
does not occur if an employee threatens to report the illegal activities
their employer unless the employer stops the conduct in question.
Flatley v. Mauro (2006) 46 Cal.Rptr.3d 606, 39 Cal.4th 299, 139 P.3d 2.
Extortion and Child Custody
What about extortion-like conduct made in connection with child custody
proceedings? People, human beings, in the United States have not been
property since Abraham Lincoln's Emancipation Proclamation and the
ratification of the 13th, 14th, and 15th Amendments to the Constitution in the mid-1860s, so how could it be extortion
for baby-daddy to threaten to call CPS for baby-mama's meth use if
a baby-mama doesn't agree to give baby-daddy sole custody of the child?
One of the elements of the crime of extortion under Penal Code § 518
is obtaining either (1) property with consent, or (2) the official act
of a public officer. An argument could be made that property rights are
indirectly impacted by child custody in the form of greater or lesser
child support obligations. Alternatively, a judge's signature to a
stipulation (i.e. a consensual contract entered as an order in a legal
proceeding) giving baby-daddy sole custody of the child could be an official
act. As such, a demand for sole custody by one parent couple with the
threat make a report to a government agency, for example to call INS,
the IRS, or CPS, could constitute the crime of extortion .
The cases on "official acts" under Penal Code § 518 generally speak to
direct extortion of a police officer or a judge, not extortion through a third party (e.g. the other parent's demanded
consent to agreement). Nevertheless, it has been said that by the California
Supreme Court that "[t]he concept of 'official act' is not
limited to authorized acts nor is it so broad as to encompass any conduct
by an officer occurring during his working hours … it is functional
nature of public officer's conduct that establishes its 'official'
character, and an act is 'official' if it is done in official
capacity, rather than privately."
People v. Norris (1985) 219 Cal.Rptr. 7, 40 Cal.3d 51, 706 P.2d 1141. In
Norris, "the issue is whether defendant committed, or intended to commit,
the crime of extortion as defined by section 518 when, after obtaining
a gun, he ordered police officers who held him in custody to drive him
to a safe haven and release him. We conclude that, although defendant
committed a variety of other crimes, his demands neither constituted extortion
nor reflected any intent to extort…"
Norris, we can infer that a family law judge making child would probably be considered
an official act within the meaning of Pen. C. § 518 and its definition
of extortion if one parent's acts constitute a "wrongful use
of fear" in a means similar to those examples given in Pen. C. §
519. Moreover, the financial benefits of increased or decreased child
support resulting from the custody order would satisfy the "obtaining
property" prong of Pen. C. § 518 in the alternative to the "official
act" element of the crime.
I think it would be an extremely interesting criminal appellate case if
my hypothetical scenario of an extortion-like threat to involve CPS if
custody of a child was not given under a stipulated order. If the judge
is not being extorted, is it an extortion crime to threaten the other
parent with agency action for child custody? Frankly, I think this kind
of behavior in similar scenarios happens all the time since many family
law litigants often think and act as if the 'ends justify the means'
when their sacred cows, their money or their children, are involved and
are at stake. In any event, prudent care should be used by family law
litigants and their attorneys in using tactics that could expose them
to criminal liability.
A reader might think 'Peterson is soft since he won't go all the
way to help me get what I want' after reviewing this article. I don't
think so a bit, and personally I would rather have an attorney advise
me to not make a bad situation worse for myself on the chance I might
not get caught, charged, and/or sanctioned. I have had times straight
out had tell a client "NO"; "either report the crime/other
malfeasance or don't and live with the consequences, but we are not
going to threaten it to get you more dollars in the settlement."
I even recently admonished one newly-admitted attorney not to make verbal
threats to me concerning reporting some of my client's alleged activities
to the state contractor's board.
Client and attorneys need to understand that a violation of CRPC 5-100
or Penal Code section 518 is just not a place where they can go, despite
the natural and sometimes frantic desire to get the best outcome possible.
While the desire to tear the other's heart out, or to cause them risks
to their financial or personal freedom, in the throes of divorce litigation
may understandably be seductive, it is just another example of how family
law litigants or rabid attack dog attorneys blow themselves up.
Or, as the picture of Mr. Arnold's 1 year old Jack Russell 'Jasmine'
being threatened by TV dogs above is intended to illustrate, some threats
are simply illusory - but your family judge won't find them nearly
as cute as he might this pup! Which I suppose is a blog for another dog
- oops, I mean "day".
Author: Michael C. Peterson, Esq.
Law Firm of Thurman W. Arnold III CFLS