Missed parts 1 and 2? Catch up::
Risk Management Tip: Understanding Duties to Third Parties, Part 1
Risk Management Tip: Understanding Duties to Third Parties, Part 2
Illegal Conduct is Not Constitutionally Protected
Business & Professions Code § 6068(a) imposes a duty on attorneys to “support the Constitution and laws of the United States and of this state.” It has long been the case that attorneys convicted of crimes, even those unrelated to the practice of law, can be disciplined or disbarred for failing to respect the law. An attorney who engages in criminal activity, whether or not prosecuted as a crime, may not have expeditious dismissal of third party claims.
In Flatley v. Mauro (2006) 39 Cal.4th 299 a celebrity dance impresario was threatened by an attorney asserting Flatley had raped his client. The attorney threatened to “go public” if a large settlement was not paid within a short amount of time. Flatley sued the attorney for civil extortion. The attorney moved to strike under C.C.P. § 425.16, California’s anti-Strategic Lawsuit Against Public Participation statute, which permits prompt dismissal of third party claims against attorneys. The attorney asserted his conduct was constitutionally protected petitioning activity covered by the litigation privilege as a pre-litigation demand. The attorney did not, however, challenge the characterization of this conduct as extortion.
The Supreme Court reasoned that an attorney whose communicative conduct is illegal, even in litigation, cannot claim the conduct is constitutionally protected activity. Id. at 609, 619. The Flatley court did not resolve whether, at a later stage of the proceeding, the attorney could claim the litigation privilege. Flatley represents an extreme circumstance where a defendant was subject to third party liability because actions taken in the name of advocacy constituted extortion.
Illegal communications are not constitutionally protected petitioning activity subject to an expeditious resolution under C.C.P. § 425.16. Next month, we will discuss whether the litigation privilege protects communications not subject to a motion to strike as constitutionally protected conduct.
About the author:
Jennifer Becker is certified by the State Bar of California, Board of Legal Specialization in Legal Malpractice, and is Chair of BASF’s Legal Malpractice Section. She is a partner at Long & Levit and the Editor-in-Chief of Long & Levit’s Lawyers and Judge’s Blog, www.longlevit.com/blog, which is searchable by topic and case name.