Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Extortion or Aggressive Advocacy?

Is threatening to reveal the names of a defendant’s sexual partners in a complaint aggressive advocacy or extortion? That is the question the Second District Court of Appeal answered in Malin v. Singer (2013) 2013 WL 3717056, 2013 Cal. App. LEXIS 556. The answer was “no,” as the court held the threats were protected by the litigation privilege.

In Malin, defendant’s attorney sent a demand letter to plaintiff with a copy of a draft complaint. Though the primary allegations of the complaint dealt with plaintiff’s alleged breach of fiduciary duties and embezzlement, the demand letter threatened:

I have deliberately left blank spaces in portions of the Complaint dealing with your using company resources to arrange sexual liaisons with older men such as ‘Uncle Jerry,’ Judge [name redacted] a/k/a ‘Dad’ (see enclosed photo), and many others. When the Complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.

In response to the demand letter, plaintiff filed his own complaint alleging defendant and her attorney were attempting to extort him by threatening to reveal this personal information if he did not settle with defendant.

The trial court denied defendant’s anti-SLAPP motion, finding that: “the allegations of sexual misconduct contained in the demand letter in this case are very tangential to the causes of action in Defendants’ complaint....” The trial court concluded that the threat of revealing the names of defendant’s sexual partners went “well beyond a typical demand letter saying that a party is going to file a complaint if some sort of settlement tor accommodation is not reached."

The Second District Court of Appeal disagreed, instead holding that “[Plaintiff’s] extortion claim is based on a demand letter that was written by an attorney on behalf of his client in anticipation of litigation.” As such, the court held it was speech protected by Code of Civil Procedure section 425.16. The court rejected plaintiff’s argument that it should apply the “Flatley exception” for speech amounting to criminal extortion. (See Flatley v. Mauro (2006) 39 Cal.4th 299.) In part, the court found that the threat to file the salacious details of plaintiff’s sexual exploits did not constitute extortion as a matter of law.

There is no doubt the demand letter could have appropriately noted that the filing of the complaint would disclose Malin had spent stolen monies on a car or a villa, if that had been the case. The fact that the funds were allegedly used for a more provocative purpose does not make the threatened disclosure of that purpose during litigation extortion.

The court went on to find that plaintiff’s extortion claim was “logically connected to litigation that was contemplated in good faith and under serious consideration when the letter was sent.”  Accordingly, the court found plaintiff’s extortion cause of action was barred by the litigation privilege set forth in Civil Code section 47. Because the privilege applied, the court found that plaintiff would be unable to establish a probability of prevailing, and thus could not make the required showing for plaintiff’s extortion claim to survive the anti-SLAPP motion. Thus, the court directed the trial court to grant the anti-SLAPP motion and dismiss the extortion claim.

-- Jack R. Leer

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**