Copyright Being sued for copyright and not sure what to do

[Zigner]

I quoted it from post #48.

No, you did not. Nice try

 

[Tax Counsel]

What I did was ask a question

Right, a question that implied the assertion that simply making an offer violated the rules of professional conduct and amounted to extortion. To which I replied in #46:

Not at all. Whatever gave you the idea that simply making an offer to the other side before or at the time a complaint is filed violates the rules of professional conduct? It's certainly not a "type of extortion".

And your reply to that was this in #48:

Well there is plenty of case law that says otherwise in many states. Attorneys have been held to civil extortion by asking for settlement before the case is heard. In some states the attorneys claim the letter (or speech) is protected by litigation privilege but more often than not the courts find that it was civil extortion as a matter of law. Of course the facts matter. But your blanket statement is false.

Note that emphasized in my reply the idea of "simply making an offer to the other side" before litigation is filed is not a violation of the rules of professional conduct nor extortion.

Your reply to that was there was "plenty of case law in many states that says otherwise", i.e. that case law contradicts my statement that simply making an offer, without more, is not a problem. But when asked for such case, you could not come up with one. You came up with one in which the attorney did more than just make an offer. He also made improper threats along with the offer. That is more than simply making an offer to settle the case.

So I think my replies fairly characterized what you were saying. If you disagreed with my take when I answered your question in post #46 you could have done so when you posted your answer in #48, but instead your reply seemed to confirm by take and doubled down on it. So to the extent there was any misunderstanding of your position here, it is not all on me. Your own posts significantly contributed to that, too.

 

[zddoodah]

You lost that bet.
Flatley v. Mauro

I knew you were going to cite that case. Predictable.

Let's recall that you claimed that "there is plenty of case law that says otherwise in many states. Attorneys have been held to civil extortion by asking for settlement before the case is heard."

Flatley is a case that arose out of an incident in which a woman sued a dancer for various causes of action relating to an alleged rape. The woman was represented by an attorney named Mauro, and the woman and Mauro "appeared on television, where [the woman] described the alleged rape 'in extremely lurid detail.'" That lawsuit was dismissed, as was a second lawsuit arising out of the same incident.

Flatley then sued the woman and Mauro, "alleg[ing] five causes of action for civil extortion, defamation, fraud, intentional infliction of emotional distress, and wrongful interference with prospective economic advantage." The defamation and fraud causes of action were alleged only against the woman. The other causes of action were alleged against both defendants.

The defendants filed an answer and an anti-SLAPP motion. An anti-SLAPP motion alleges that the plaintiff's cause(s) of action arise out of activity protected by the First Amendment and requires that the plaintiff prove a probability of success at the outset of the case.

The California Supreme Court first held that the anti-SLAPP law does not apply to speech activity that is illegal as a matter of law. The Court then held that Mauro's conduct was criminal extortion as a matter of law and, therefore, the anti-SLAPP law would not protect him. More specifically, the Court noted that, in a letter, Mauro:

"threat[ened] to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he 'settled' by paying a sum of money to [Mauro's client] of which Mauro would receive 40 percent. In his follow-up phone calls, Mauro named the price of his and Robertson's silence as 'seven figures' or, at minimum, $1 million. The key passage in Mauro's letter is at page 3 where Flatley is warned that, unless he settles, 'an in-depth investigation' will be conducted into his personal assets to determine punitive damages and this information will then 'BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT․ [¶] Any and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find.' This warning is repeated in the fifth paragraph: '[A]ll pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S., S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately [be] turned over to any and all appropriate authorities.'"
​

Ultimately, the California Supreme Court affirmed the denial of the anti-SLAPP motion. However, even this did not result in Mauro being "held to civil extortion by asking for settlement before the case is heard." This was not a mere settlement demand for money upon a thread of civil litigation. Mauro was a complete sleaze who threatened public disclosure of private facts (blackmail) and possible reporting of alleged immigration and tax law violations. Had Mauro simply threatened civil litigation, nothing would have come of it, but this sort of illegal conduct is what led to the lawsuit. Upon remand, the case proceeded. Mauro filed a motion for summary judgment, but the case was eventually settled.

So...try again.

Here is my original question: 'Doesn't [making a pre-lawsuit settlement demand] violate the code of ethics that attorneys have to follow? Isn't doing so a form of extortion to coerce a defendant into settling the case or just paying the demand?'

I answered that question at the time you asked it, and the answer remains no. See California Rules of Professional Conduct, Rule 3.10(a) ("A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute."). You'll note that Rule 3.10(a) does not say (nor does any other rule say) that a lawyer may not threaten civil litigation. In particular, comment 2 to Rule 3.10 says, "This rule does not apply to a threat to bring a civil action. It also does not prohibit
actually presenting criminal, administrative or disciplinary charges, even if doing so
creates an advantage in a civil dispute."

Tying this back to the Flatley case, it is clear that Mauro "threaten[ed] to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute."* It's textbook stuff, and what Mauro did was not a simple pre-lawsuit demand.

* - The current California Rules of Professional Conduct have been revamped recently to be more in line with the ABA-promulgated rules on which most states based their rules. However, the substance of the rule existed in the old rules as well.

 

[welkin]

So to the extent there was any misunderstanding of your position here, it is not all on me. Your own posts significantly contributed to that, too.

Fair enough.