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Dr. Frank's What's-it: Comment on People have a right to petition the courts...
Comments: People have a right to petition the courts...

Frank,

I think the key point you are missing here is the potential chilling effect that a finding of extortion has on one of the fundamental aspects of the American legal system.

Like it or not, this country highly regards the notion that a pro se litigant should be able to protect his or her rights through suit with relative ease. Indeed, this was one of the major reforms we sought to achieve through the adotption of the Federal Rules of Civil Procedure. Plaintiffs with very minimal finances and almost no knowledge of the law can bring a case.

The trade-off, of course, is that defendants will have to spend resources to defend themselves against potentially frivolous claims. But this is a trade-off we are willing to make.

This is not to say we haven't placed some checks on the right to sue through devices like summary judgment. But by exposing the plaintiff to potential liability via an extortion conviction, plaintiffs may become much less likely to sue -- which some tort reformers might see as a wonderful thing -- but which the American legal system has been shown to greatly disfavor. Consequently, I think the consensus in the legal community is that we should only use devices like extortion convictions with great caution.

In addition, I'm not sure where you are going with your point that this "leaves the Hair Avenger free to extort again, whereas a felony conviction would disbar him." Whether or not he's a lawyer in the future, he can file similar claims if he so desires (at his own peril). Your point, when taken to the extreme, suggests that we should always punish behavior through felony convictions rather than "slap on the wrist" misdemeanors because otherwise they are "free to commit crime" again. Is this really what you mean?

Posted by Junior at March 26, 2008 03:15 AM

** the consensus in the legal community is that we should only use devices like extortion convictions with great caution.**

Can't say I'm surprised there, Junior.

They teach you how to do this stuff in law school, then? God help us.

I'm not making a global statement about misdemeanors vs. felonies, but I do think if this guy is still allowed to practice law after such a clear abuse, he got off pretty easy.


Posted by Dr. Frank at March 26, 2008 04:25 AM

I think the slippery slope argument Junior is making (regarding the chilling effect) doesn't really work given this fact pattern. The SS argument relies on some hard-to-find line. The line in this case, as indifinable as it may be, was clearly crossed here. By quite a bit. There were several letters, the “pro se” litigant here had intimate knowledge of the law and the multiple letters were known to the litigant to be baseless. If there is a slippery slope argument to be made, this is not the fact pattern you want to do it with.

Further, I find the chilling effect arguement unconvinging. Implicit in that argument is that the average potential plaintiff would find parity in their situation and this particular attorney's. I don’t consider him the average pro se litigant, especially given he was using his expersite in the law as a weapon. I highly doubt not only that potential plaintiffs would relate to his particular situation, but also that the numbers would be significant enough to constitute a "chilling effect." I would even submit that it is a a good thing that potential litigants who relate to this situation would possibly be chilled (although I doubt that because douche bags will be douch bags).

Regarding your FRCP argument, I would say that your take on the situation is overbroad. True, the legal system may want to ensure that anyone can protect his/her rights – and that frivolous suits may arise. However, the frivolous suits that arise should be in good faith. This attorney had no good faith basis for his letters. Even if his potential suit would have been colorable (big IF), he had no intention of litigating the matter. There is a difference between thinking you have a right you don’t have, and knowing you don’t have a right, but threatening to sue anyways. They are not, and should not, be equal under the law. This bastard thought he was being slick, knew he was doing wrong, and is now trying to misuse Constitutional protections to cover his ass.

This is the part where I say I am a lawyer. And here is where I say that I take my ethical obligations VERY seriously. This attorney has an ethical obligation to be better than the average citizen, he took a freaking oath. The fact that he not only broke his oath to the state, but misused the law while doing so is disgusting, and the state should hold him to a higher standard when sentencing him. When his conduct gets reviewed by the ethics board, I hope he gets more than a slap on the wrist. And we wonder why people don’t trust our profession.

Posted by Lisa at March 26, 2008 04:43 PM

Thanks, Lisa. I find that reassuring. Well-stated.

Posted by Dr. Frank at March 26, 2008 06:33 PM

First, I guess I didn't make it clear that I also find his behavior abhorrent. I was simply trying to explain the reasons for the disjunct between Frank's feelings and the lawyers who aren't sure whether the extortion conviction was appropriate.

Also, you'll notice my post is based on the assumption that Frank's objection was not so much based on the fact that the guy was a lawyer, but that people in general can file claims like this. Lisa's argument that lawyers should be held to a higher standard is something I didn't even attempt to address (because my post was long-winded enough as it was).

Finally, Lisa's assertion that plaintiffs need to have some intention to litigate is true in theory, but completely false in practice. The reality is that almost all suits are never going to make it to trial, and plaintiffs and defendants both know it.

Posted by Junior at March 26, 2008 09:07 PM

I guess I read Frank's post a little differently, then. To me it wasn't so much the single threatening letter, but the overall pattern that he objected to - the overall behavior that resulted in a charge. I was thinking this specific case not the general.

I am unsure how your last paragraph cuts, Junior. I will agree that most suits settle (over 90%), but what I was ham fistedly trying to say was that even if one intend to take the first offer to settle, one needs at least the belief that one could go to court. Ps may know they probably won't go to court, but Ps need to at least believe they could should the situtaion become a stalemate. I am not even saying they have to think they would win, only that they could at least get to the discovery stage. The knowledge that in the real world you will probably settle doesn't, to my mind, somehow negate that requirement.

Posted by Lisa at March 27, 2008 12:47 AM

Junior, my concern is indeed not with the general concept of lawsuits, but rather with the behavior of this specific lawyer-predator.

I suppose the thing I'm really wondering, now and pretty much for the first time, is: how "normal" is this behavior among people with law degrees?

I mean, here's a guy who figures he can pick up a little extra cash by operating what amounts to a freelance protection racket, using his legal credentials to intimidate terrified local citizens into paying him off personally under a flimsy, indeed laughable, pretext. As Lisa says, if anything calls for a chilling effect, it's this; and the prosecutors and jury, along with, perhaps, the state's bar association, seem to agree, which is quite a relief.

Now, the lawyers at the linked blogs certainly find the situation funny, as anyone would, and they don't seem to approve of the guy's tactics; but they also seem far more indulgent of this scheme than I would have expected them to be. That is, they seem to find the matter just as funny as, but far less outrageous than, the average person would. The sense I got from them -- and I could well be wrong, it could just be lawyerly understatement or irony -- is that even though this guy went a little too far, perhaps, some slicker version of the same kind of racket might well pass ethical muster, and anyway, it's not really all that bad. (Maybe the better law schools teach you to operate more judiciously when shaking down the neighborhood, say, sending only ten letters at a time rather than nineteen?) Anyway, it was apparently "a bit much" to charge the guy with anything as serious as extortion.

"In future, dear boy, please remember: when victimizing the public, a little goes a long way," I imagine them saying with a wink, over glasses of sherry at the After Party, or while rolling around naked in a big pile of money in the VIP lounge in the back of the county courthouse.

Moreover, it seems clear from the coverage in the news and in the blogs that actually charging someone in this situation is something of a novelty -- true?

The overlawyered.com post on the subject (http://www.overlawyered.com/2008/03/nh-jury-lawyers-demand-letters.html) begins:

"Now this could crimp the business plans of quite a few attorneys."

I realize that Overlawyered is on the side of the angels, and I'm sure there's sarcasm, irony, and flippancy in that phrase. But in view of the foregoing, I really have to wonder: would it *really* cramp the business plans of that many attorneys out there? Surely not. And yet...

Posted by Dr. Frank at March 27, 2008 08:31 AM

Almost all civil litigators send out letters in advance of suing as a courtesy, to give the other side an opportunity to respond or settle before commencing suit.

What happened here is quite different. Hynes was acting as principal, sending letters to places where there was no reasonable view of the facts or law that would justify his demands, and without any apparenty showing of good faith of his intention to commence a lawsuit.

While the question of whether it was criminal may be in issue, there is a wide margin between what Daniel Hynes did and what the rest of the bar regularly does. While both may be extortionate in some respects, the bulk are based in a sound and legitimate dispute, whereas Hynes was out on a 19 letter fishing expedition.

Posted by shg at March 27, 2008 10:24 PM

Losers should be more often forced to pay winners court costs, and punitive damages should either not exist orbe paid to charity, maybe even chosen by the losers pending court approval. These changes seem like they would discourage this kind of behavior while not discouraging the right to seek damages.

Posted by josh at March 29, 2008 11:38 PM

Bad lawyer, sure. Bad person, you bet! The bad lawyering is not from the profession, it is from the person. In California, you are more likely to lose your bar ticket for wrongly taking someone's money than if you get a dui or sell some crack. Fraud gets you a visit to the Bar faster than anything. Hopefuuly, this mockery to make a buck will be enough to pull his ticket. It runs closely to the cause of action of 'malicious prosecution' (filing lawsuits with insufficient investigation.) Lawyering is like all other professions- bad seeds make bad decisions. My guess- total guess- is that those lawyers who responded sheepishly were sheepish out of fear of a slander suit from the nutball. A guy like that would find his own nobility in declaring himself a victim. And, he would delight in the free publicity with the hope that the press coverage would take his name from the back of the yellow pages to the front of the line. (On the other hand, they could be his cohorts who have acted in a similar manner and are waiting for the toll of the bell.) I feel badly for the unsuspecting future clients who believe his paranoid 'they're out to get me' rant and who put a truly viable case in the hands of this incompetent. Sadly, something like that happens every day...

Posted by dda at April 17, 2008 07:52 AM
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