Anti-SLAPP Adventure

[Covah]

What is the name of your state (only U.S. law)? California

I witnessed a crime and worked with authorities as a prosecution witness. In order to get me off his back, the perp paid a lawyer to write me a letter accusing me of serious and fictional crimes, and threatening to prosecute me on those crimes if I did not back off working with authorities on this client's case. To me, this letter was illegal in a bunch of ways so I sued the lawyer in small claims for infliction for emotional distress. The lawyer was honest enough to inform me I was in over my head, that he would strike my action and collect $5,500 in profit from me, if I persisted. Checking up on that I find he was correct so I dismissed my case.

It works like this: a demand note is constitutionally protected freedom of speech, even when the demand is malicious. If you take action against a hostile demand note you are violating the writer's constitutional right, which is an actionable defense. Under Calif anti-SLAPP law the writer can have the plaintiff's motion struck without a plead and recover legal fees, which are of course inflated. The whole thing is therefore a scam played by lawyers on a naive public.

I have continued working with authorities and have heard no more from the lawyer. The letter was no more than a worthless bluff, I could have just thrown it away. The lawyer scammed his client.

I am not asking for advice here as much as giving it, although would be nice to know if anyone has a defense against a malicious demand note.

 

[quincy]

What is the name of your state (only U.S. law)? California

... It works like this: a demand note is constitutionally protected freedom of speech, even when the demand is malicious. If you take action against a hostile demand note you are violating the writer's constitutional right, which is an actionable defense. Under Calif anti-SLAPP law the writer can have the plaintiff's motion struck without a plead and recover legal fees, which are of course inflated. The whole thing is therefore a scam played by lawyers on a naive public. ...

What I have quoted of your post above is not correct as written.

Because I don't have time right now to go into detail, following is a link to case out of California for you to review (Flatley v. Mauro, 139 P.3d 2, Cal Sup Ct. 2006): http://scholar.google.com/scholar_case?case=15916904069883540769

 

[Covah]

Thanks!

Your link says a demand note is exempt from freedom of speech when it is criminal extortion. I assumed the same, that the demand note in my case was exempt from freedom of speech as "obstruction of justice":

136.1. Paraphrased: "Any person who knowingly attempts to dissuade any witness giving testimony at any
inquiry authorized by law is guilty of a public offense." Here is the statement in the demand note:

"You hereafter make no further calls to public entities [or] a very sharp and formal response will be pursued against you."

That is the situation precisely. Note that the attorney in my case and your link presume litigation privilege, yet here is no mention of litigation. What is "a very sharp and formal response"? Another nasty and worthless letter?

I advise the reader to search "anti-SLAPP small claims" to read horror stories. There are other constitutional rights besides demand letters that a tricky attorney can use to have the plaintiff's case dismissed without plead, and grant attorney fees to the defendant. It is not unusual for a plaintiff to waltz into court with a perfectly valid claim only to have the judge strike the claim and award thousands to the defendant. Anti-SLAPP is no joke, even in small claims.

I dismissed my case "without prejudice" and will be contacting an attorney after the holidays. Maybe I'll refile.

 

[quincy]

Your link says a demand note is exempt from freedom of speech when it is criminal extortion. I assumed the same, that the demand note in my case was exempt from freedom of speech as "obstruction of justice":

136.1. Paraphrased: "Any person who knowingly attempts to dissuade any witness giving testimony at any
inquiry authorized by law is guilty of a public offense." Here is the statement in the demand note:

"You hereafter make no further calls to public entities [or] a very sharp and formal response will be pursued against you."

That is the situation precisely. Note that the attorney in my case and your link presume litigation privilege, yet here is no mention of litigation. What is "a very sharp and formal response"? Another nasty and worthless letter?

I advise the reader to search "anti-SLAPP small claims" to read horror stories. There are other constitutional rights besides demand letters that a tricky attorney can use to have the plaintiff's case dismissed without plead, and grant attorney fees to the defendant. It is not unusual for a plaintiff to waltz into court with a perfectly valid claim only to have the judge strike the claim and award thousands to the defendant. Anti-SLAPP is no joke, even in small claims.

I dismissed my case "without prejudice" and will be contacting an attorney after the holidays. Maybe I'll refile.

If you think you have a case, you are smart to contact an attorney after the holidays for a personal review.

Almost every pro se litigant is going to have a tough time against a shrewd lawyer. You need a lawyer of your own to hold the defendant and his lawyer in check. From what you have written, the demand letter from the attorney seems to me to cross several different legal lines but, because all cases are fact-specific, the personal review is necessary to determine where you stand legally.

The anti-SLAPP statutes serve a good purpose. It is too bad when they are misused.

Good luck.

 

[justalayman]

What is the name of your state (only U.S. law)? California

I witnessed a crime and worked with authorities as a prosecution witness. In order to get me off his back, the perp paid a lawyer to write me a letter accusing me of serious and fictional crimes, and threatening to prosecute me on those crimes if I did not back off working with authorities on this client's case..

first off, witness intimidation (dissuading a witness in California) is outright illegal. In fact, it looks like it would rise to the level of a felony for the attorney and the attorney's client.

136.1. (a) Except as provided in subdivision (c), any person who
does any of the following is guilty of a public offense and shall be
punished by imprisonment in a county jail for not more than one year
or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or
victim from attending or giving testimony at any trial, proceeding,
or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any
witness or victim from attending or giving testimony at any trial,
proceeding, or inquiry authorized by law.
(3) For purposes of this section, evidence that the defendant was
a family member who interceded in an effort to protect the witness or
victim shall create a presumption that the act was without malice.

(b) Except as provided in subdivision (c), every person who
attempts to prevent or dissuade another person who has been the
victim of a crime or who is witness to a crime from doing any of the
following is guilty of a public offense and shall be punished by
imprisonment in a county jail for not more than one year or in the
state prison:
(1) Making any report of that victimization to any peace officer
or state or local law enforcement officer or probation or parole or
correctional officer or prosecuting agency or to any judge.
(2) Causing a complaint, indictment, information, probation or
parole violation to be sought and prosecuted, and assisting in the
prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in
connection with that victimization.

(c) Every person doing any of the acts described in subdivision
(a) or (b) knowingly and maliciously under any one or more of the
following circumstances, is guilty of a felony punishable by
imprisonment in the state prison for two, three, or four years under
any of the following circumstances:
(1) Where the act is accompanied by force or by an express or
implied threat of force or violence, upon a witness or victim or any
third person or the property of any victim, witness, or any third
person.
(2) Where the act is in furtherance of a conspiracy.
(3) Where the act is committed by any person who has been
convicted of any violation of this section, any predecessor law
hereto or any federal statute or statute of any other state which, if
the act prosecuted was committed in this state, would be a violation
of this section.
(4) Where the act is committed by any person for pecuniary gain or
for any other consideration acting upon the request of any other
person. All parties to such a transaction are guilty of a felony.
(d) Every person attempting the commission of any act described in
subdivisions (a), (b), and (c) is guilty of the offense attempted
without regard to success or failure of the attempt. The fact that no
person was injured physically, or in fact intimidated, shall be no
defense against any prosecution under this section.
(e) Nothing in this section precludes the imposition of an
enhancement for great bodily injury where the injury inflicted is
significant or substantial.
(f) The use of force during the commission of any offense
described in subdivision (c) shall be considered a circumstance in
aggravation of the crime in imposing a term of imprisonment under
subdivision (b) of Section 1170.

Second, a witness to a crime does not have the option of "not working with the prosecution" unless the prosecution doesn't want to work with them. A subpoena is all it takes to get you into court and if you do not testify as required you would be subject to criminal charges yourself.


Third, an attorney does not prosecute crimes. At best they can report knowledge of the crime to the police or prosecutor who makes the decision whether a crime is prosecuted or not. Unless the attorney has facts to implicate you in the accused crimes, a police report is likely to be a waste of everybody's time.

 

[CdwJava]

What is the name of your state (only U.S. law)? California

I witnessed a crime and worked with authorities as a prosecution witness. In order to get me off his back, the perp paid a lawyer to write me a letter accusing me of serious and fictional crimes, and threatening to prosecute me on those crimes if I did not back off working with authorities on this client's case. To me, this letter was illegal in a bunch of ways so I sued the lawyer in small claims for infliction for emotional distress. The lawyer was honest enough to inform me I was in over my head, that he would strike my action and collect $5,500 in profit from me, if I persisted. Checking up on that I find he was correct so I dismissed my case.

It works like this: a demand note is constitutionally protected freedom of speech, even when the demand is malicious. If you take action against a hostile demand note you are violating the writer's constitutional right, which is an actionable defense. Under Calif anti-SLAPP law the writer can have the plaintiff's motion struck without a plead and recover legal fees, which are of course inflated. The whole thing is therefore a scam played by lawyers on a naive public.

I have continued working with authorities and have heard no more from the lawyer. The letter was no more than a worthless bluff, I could have just thrown it away. The lawyer scammed his client.

I am not asking for advice here as much as giving it, although would be nice to know if anyone has a defense against a malicious demand note.

I hope you reported this to the police and the prosecutor. This seems a clear case of witness tampering and even extortion!

As was mentioned, this is not really a choice you have, anyway. The DA could simply subpoena you and get your testimony. The other party - AND HIS ATTORNEY - face criminal charges for their actions ... provided things are as you have characterized them.

 

[quincy]

Although I agree that the attorney demand letter received by Covah appears to violate a law or two as well as attorney professional rules, the letter itself along with facts about the case need to be known to determine this better.

There is a "litigation privilege" that covers attorney-drafted demand letters. Although witness tampering and extortion are possibilities that Covah should check out with a lawyer in his area, the law can be fuzzy. If the demands can be seen as tied directly to the litigation, it is probably not extortion.

Here is a link to the Orange County Bar Association with a 2013 article by Matthew Hodel and Fred Wilks that discusses this well:

http://www.ocbar.org/AllNews/NewsView/tabid/66/ArticleId/1115/August-2013-Lawful-and-Unlawful-Prelitigation-Demand-Letters.aspx

 

[CdwJava]

I doubt that the attorney's letter was as blatant as characterized here, but that would seem to be a clear violation of the law. The unfortunate phrasing is likely the OP's re-wording.

I have known a number of cases where such language has resulted in near instant arrests of the parties involved. So, if the OP has reported this to to the police and the DA and there has been no arrests or court orders to stop the behavior as yet, I suspect that the phrasing was something less than blatant.

 

[quincy]

... I suspect that the phrasing was something less than blatant.

I suspect you might be right.

The second post by Covah quotes a portion of the attorney's letter as saying: "You hereafter make no calls to public entities [or] a very sharp and formal response will be pursued against you."

If that is the worst of it, then the letter is rather benign and not likely to support a legal action for IIED or rise to the level of extortion or witness tampering. It is also a lot less threatening than the first post by Covah seemed to indicate.

In addition, the "public entites" that Covah has been asked not to call are not identified. The attorney could, for example, just want Covah to stop talking to the press and "the formal response" could be a gag order issuing from the court.

Whatever the case, it still would be smart for Covah to have the letter personally reviewed in its entirety by an attorney in his area, just to be sure the other party's attorney is behaving himself.

 

[xylene]

I smell crazy.

 

[Proserpina]

I smell crazy.

Open your windows. It'll fade eventually.

 

[quincy]

I smell crazy.

I generally blame all smells on my dogs.

 

[Proserpina]

I generally blame all smells on my dogs.

I blamed my husband for the longest time. Then, one night when he was at work, the Green Fog Of Death silently emerged from beneath the hound and I realised the truth.

It really was the dog.

There is a wonderful boardmember who can confirm my account if needed.

 

[Covah]

The second post by Covah quotes a portion of the attorney's letter as saying: "You hereafter make no calls to public entities [or] a very sharp and formal response will be pursued against you." If that is the worst of it, then the letter is rather benign

Maybe so, maybe not, the consultation will clarify options.

My objective here is to warn the reader of nefarious anti-SLAPP traps, of which I had no clue, and into which I almost walked. If one receives a malicious demand note, see an attorney, do not take it to small claims like I did. My choice was to laugh it off or take action, and I chose to take action by small claims, which was not correct. Seeing a lawyer about possible felony charges right away would have been a better choice, and I did not know.

I recommend the reader search "anti-SLAPP small claims" and read the horror stories. Here is one:

After our clients filed an anti-SLAPP motion, the plaintiffs dismissed their complaint. The Court of Appeal found that our clients were targets of a SLAPP and were entitled to recover our attorneys fees, even though the plaintiffs dismissed the complaint.

It appears that the lawyer can come after me even after I dismissed the complaint. My nightmare is not over.

 

[quincy]

Maybe so, maybe not, the consultation will clarify options.

My objective here is to warn the reader of nefarious anti-SLAPP traps, of which I had no clue, and into which I almost walked. If one receives a malicious demand note, see an attorney, do not take it to small claims like I did. My choice was to laugh it off or take action, and I chose to take action by small claims, which was not correct. Seeing a lawyer about possible felony charges right away would have been a better choice, and I did not know.

I recommend the reader search "anti-SLAPP small claims" and read the horror stories. Here is one:

After our clients filed an anti-SLAPP motion, the plaintiffs dismissed their complaint. The Court of Appeal found that our clients were targets of a SLAPP and were entitled to recover our attorneys fees, even though the plaintiffs dismissed the complaint.

It appears that the lawyer can come after me even after I dismissed the complaint. My nightmare is not over.

The anti-SLAPPs, as I mentioned earlier, have been important in eliminating a lot of frivolous cases. If a person has a legitimate suit, the threat of an anti-SLAPP should not deter them from filing. In order for a person to determine if they have a legitimate case, however, an attorney's assistance is often needed.

As to seeing a lawyer earlier about the letter, that is something you could have done or, if you were working with authorities as a prosecution witness, taking the letter you received to the prosecutor could have let you know if the attorney committed any crime. It is possible that you might be reading the letter as more threatening than it is or it is also possible that you filed the wrong type of lawsuit in the wrong court. I don't know.

If your main purpose for posting here is to warn people about anti-SLAPPs, okay. Anti-SLAPPs are something people in a handful of states (not all states have anti-SLAPP statutes) need to consider before filing a lawsuit. They should be sure their suit has merit and is not being filed for the sole purpose of silencing someone else's rights-protected speech.

You said you will be contacting an attorney after the holidays and this will give you a better idea of where you can go from here. The attorney can tell you after his personal review of the letter and the facts if your suit is worth refiling and/or if the prosecutor should be told that the other attorney sent it to you.

Good luck.