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 the litigation.
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 "divorce trance."
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 status."
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
In 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.
The 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.
The 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."
While the 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…" Id.
From 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