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1. Blog Lecture No.

19: Of Preliminary Injunctions and TROs

Good morning class! Today we discuss a provisional remedy that gives instant results. Expensive
though... but very relevant given this.

What is a writ of preliminary injunction?

It is an order granted at any stage of an action or proceeding prior to the judgment or final order,
requiring a party or a court, agency or a person to refrain from a particular act or acts.

It may also require the performance of a particular act or acts, in which case it shall be known as
a preliminary mandatory injunction. (from Section 1, Rule 58 of the 1997 Revised Rules of
Procedure)

So remember this. If the court orders someone not to do something, it's called a preliminary
injunction. If the court orders someone to do something, it's called a preliminary mandatory
injunction. Also, it is called preliminary because the court issues these orders while a case is
pending.

Can you give an example of each?

Sure. For example, if the court orders the government not to implement EVAT in the meantime,
the court issued a writ of preliminary injunction.

If the court orders MERALCO to refund excess payments while the case is being litigated, the
court issued a writ of preliminary mandatory injunction.

What is the difference between a preliminary injunction and a temporary restraining order?

The basic difference is basically found in Section 5, Rule 58:

No preliminary injunction shall be granted without hearing and prior notice to the party or person
sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant before the matter can be
heard on notice, the court to which the application for preliminary injunction was made, may
issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days
from service on the party or person sought to be enjoined, except as herein provided. Within the
said twenty-day period, the court must order said party or person to show cause, at a specified
time and place, why the injunction should not be granted, determine within the same period
whether or not the preliminary injunction shall be granted, and accordingly issue the
corresponding order.

However, and subject to the provisions of the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of
a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next preceding section as to service of summons
and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72)
hours, the judge before whom the case is pending shall conduct a summary hearing to determine
whether the temporary restraining order shall be extended until the application for preliminary
injunction can be heard. In no case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the original seventy-two hours provided
herein.

In the event that the application for preliminary injunction is denied or not resolved within the
said period, the temporary restraining order is deemed automatically vacated. The effectivity of a
temporary restraining order is not extendible without need of any judicial declaration to that
effect and no court shall have authority to extend or renew the same on the same ground for
which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A
restraining order issued by the Supreme Court or a member thereof shall be effective until further
orders.

Hey! That's kinda long! Can you break it down to the things I need to know for now?

The basic difference between the two is a preliminary injunction can only be granted after due
hearing. A temporary restraining order can be given by a court even before a hearing, if there is
extreme urgency of suffering a grave injury.

In proceedings in the lower courts (used to be called "Courts of First Instance (CFIs)" now
"Regional Trial Courts (RTCs)") a glaring difference between PIs and TROs is the length of time.
TROs can last only from 3 days (72 hours) and twenty days. PIs last until the case is pending.

In higher courts, this difference in duration becomes blurred. In the Court of Appeals, TROs last
for 60 days. In the Supreme Court, however, a TRO lasts until further orders, making it
essentially the same as a PI.

In RTCs and the Court of Appeals, the court issuing a TRO must schedule a hearing to determine
the need for a PI within the TRO's lifespan. If the TRO does not ripen into a PI within the 20 day
or 60 day period, it is automatically lifted.

So in the EVAT case, how long will the TRO last?

Since it was the Supreme Court was the court that issued the TRO, the duration is until its further
orders. Fortunate for people with gas-guzzling cars like me...

Civil Procedure: Rule 58 Preliminary Injunction


Dec 18
Posted by Magz

Sec. 1. Preliminary injunction defined; classes. A preliminary injunction is an order granted


at any stage of an action or proceeding prior to the judgment or final order, requiring a party or
a court , agency or a person to refrain from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall be known as a preliminary
mandatory injunction.

The primary purpose of injunction is to preserve the status quo by restraining action or
interference or by furnishing preventive relief. The status quo is the last actual, peaceable,
uncontested status which precedes the pending controversy.

A mandatory injunction is an extreme remedy and will be granted only on a showing that (a) the
invasion of the right is material and substantial, (b) the right of the complainant is clear and
unmistakable, and (c) there is an urgent and paramount necessity for the writ to prevent serious
damage.

Distinctions between injunction and prohibition

1. Injunction is generally directed against a party in the action while prohibition


is directed against a court, tribunal or person exercising judicial powers;

2. Injunction does not involve the jurisdiction of the court, whereas prohibition
may be on the ground that the court against whom the writ is sought acted
without or in excess of jurisdiction;

3. Injunction may be the main action itself, or just a provisional remedy in the
main action, whereas prohibition is always a main action. Hence, for
temporary restraint in a proceeding for prohibition, preliminary injunction
must be sought therein.

Bataclan v. Court of Appeals

175 SCRA

A writ of preliminary injunction is primarily intended to maintain the status quo between the
parties existing prior to the filing of the case. As an ancillary or preventive remedy, it may only
be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose
during the pendency of the principal action.
Courts should not just summarily issue an order of denial without an adequate hearing and
judicious evaluation of the merits of the application as the same would be a denial of procedural
due process and could result in irreparable prejudice to a party.

Sec. 2. Who may grant preliminary injunction. A preliminary injunction may be granted by
the court where the action or proceeding is pending. If the action or proceeding is pending in
the Court of Appeals or in the Supreme Court, it may be issued by said court or any member
thereof.

Sec. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be


granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts complained of, or
in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained
of during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do,
or is procuring or suffering to be done, some act or acts probable in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual.

Bacolod Murcia Milling v. Capitol

17 SCRA

For the writ of preliminary injunction to issue, there must be a showing based on facts that the
party availing of the remedy is entitled to the relief demanded.

An injunction will not issue to protect a right not in esse and which may never arise or to restrain
an act, which does not give rise to a cause of action

The function of an injunction is the maintenance of the status quo as of the time of its issuance.
In the case at bar, the right of the Central in using the railway has already expired: there being no
right to be protected anymore, the writ of preliminary injunction cannot be had.
Merville Park Homeowners Association Inc. v. Velez

196 SCRA

Where the village association seeks to take possession and control of the waterworks system
from the Salandanan who failed to undertake certain contractual obligations necessary to assure
the homeowners of a steady water supply, a writ of preliminary mandatory injunction will not be
granted absent a showing that the severe water shortage had not been remedied and that a clear
and present danger of the same or similar default on Salandanans part, threatening the same
severe consequences for the subdivision residents.

A preliminary mandatory injunction is not a proper remedy to take property out of the possession
and control of one party and to deliver the same to the other party where possession of such
property is being disputed. It may issue pendente lite only in cases of extreme urgency, where the
right to the possession, during the pendency of the main case, of the property involved is very
clear; where the considerations of relative inconvenience bear strongly in favor of the
complainant seeking the possession of pendente lite; where there was willful and unlawful
invasion of plaintiffs rights, over his protest and remonstrance the injury being a continuing one;
where the effect of the preliminary mandatory injunction is to re-establish and maintain a pre-
existing and continuing relationship between the parties, recently and arbitrarily interrupted by
the defendant, rather than to establish a new relationship during the pendency of the principal
case. It is for the party requesting the writ to demonstrate clearly the presence of one or more of
the above grounds.

Sec. 4. Verified application and bond for preliminary injunction or temporary restraining
order. A preliminary injunction or temporary restraining order may be granted only when:

(a) The application in the action or proceeding is verified and shows facts entitling the
applicant to the relief demanded; and

(b) Unless exempted by the court, the applicant files with the court where the action or
proceeding is pending a bond executed to the party or person enjoined, in an amount to be fixed
by the court, to the effect that the applicant will pay to such party or person all damages which
he may sustain by reason of the injunction or temporary restraining order if the court should
finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a
writ of preliminary injunction shall be issued.
(c) When an application for a writ of preliminary injunction or a temporary restraining
order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and in the presence of the adverse party or the person
to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied
by service of summons, together with a copy of the complaint or initiatory pleading and the
applicants affidavit and bond, upon the adverse party in the Philippines.

However, where the summons could not be served personally or by substituted service
despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of
summons shall not apply.

(d) The application for a temporary restraining order shall thereafter be acted upon only
after all parties are heard in a summary hearing which shall be conducted within twenty-four
(24) hours after the sheriffs return of service and/or the records are received by the branch
selected by raffle and to which the records shall be transmitted immediately.

Sec. 5. Preliminary injunction not granted without notice; exception. No preliminary


injunction shall be granted without hearing and prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by affidavits or by verified application that great or
irreparable injury would result to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was made, nay issue ex parte a
temporary restraining order to be effective only for a period of twenty (20) days from service on
the party or person sought to be enjoined, except as herein provided. Within the said twenty-day
period, the court must order said party or person to show cause, at a specified time and place,
why the injunction should not be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the corresponding order.

However, and subject to the provisions of the preceding sections, if the matter is of
extreme urgency and the applicant will suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue
ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the next preceding section as to service of
summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending shall conduct a summary hearing to
determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20 days, including the original seventy-two hours
provided herein.

In the event that the application for preliminary injunction is denied or not resolved
within the said period, the temporary restraining order is deemed automatically vacated. The
effectivity of a temporary restraining order is not extendible without need of any judicial
declaration to that effect and no court shall have authority to extend or renew the same on the
same ground for which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A
restraining order issued by the Supreme Court or a member thereof shall be effective until further
orders.

Temporary restraining order, when issued

1. When great or irreparable injury would result to the applicant even before the
application is heard on notice; 20-day temporary restraining order is issued.

2. If the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the court may issue ex parte a 72-hour
temporary restraining order; can only be issued by the executive judge of a
multiple-sala court or by the presiding judge of a single-sala court.

The judge issuing a 72-hour TRO is obliged to conduct a summary hearing within the effectivity
of the 72-hour TRO to determine whether the TRO shall be extended in which case, the same is
converted into a 20-day TRO. Within the 20-day period of effectivity of the TRO the court shall
determine in a hearing whether or not the preliminary injunction is to be granted. This 20-day
period is inextendible.

Thus, a TRO may be converted to a preliminary injunction, which in turn may be converted into
a final injunction. TRO and preliminary injunction are issued to maintain the status quo ante, that
is, prior to the institution of the main action. A final injunction confirms a preliminary injunction
and perpetually enjoins a party or person from doing the act/s complained of.

Effectivity of TROs:

TRO issued by trail court may either be for 72 hours or 20 days; if issued by the CA or a member
thereof, it shall be effective for sixty (60) days; TROs0 issued by the SC shall be effective until
further notice.

Social Security Commission v. Bayona


5 SCRA

Damages are irreparable within the meaning of the rule relative to the issuance of injunction
when there is no standard by which their amount can be measured with reasonable accuracy. An
irreparable injury which a court of equity will enjoin includes that degree of wrong of a repeated
and continuing kind which produce hurt, inconvenience, or damage that can be estimated only by
conjecture and not by any accurate standard of measurement. An irreparable injury to authorize
an injunction consists of a serious charge of, or is destructive to, the property it affects, either
physically or in the character in which it has been held and enjoined, or when the property has
some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of
the loss thereof.

For an injury to be irreparable, it does not have to refer to the amount of damages that may be
caused but rather to the difficulty of measuring the damages inflicted. If full compensation can
be obtained by way of damages, equity will not apply the remedy of injunction.

Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining
order. The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may further be denied or granted, may be
dissolved, if it appears after hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully
compensated for such damages as he may suffer, and the former files a bond in an amount fixed
by the court conditioned that he will pay all damages which the applicant may suffer by the
denial or the dissolution of the injunction or restraining order. If it appears that the extent of the
preliminary injunction or restraining order granted is too great, it may be modified.

Sec. 7. Service of copies of bonds; effect of disapproval of same. The party filing a bond in
accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the
other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If
the applicants bond is found to be insufficient in amount, or if the surety or sureties thereon fail
to justify, and a bond sufficient in amount with sufficient sureties approved after justification is
not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to
be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in
amount with sufficient sureties approved after justification is not filed forthwith, the injunction
shall be granted or restored, as the case may be.

Sec. 8. Judgment to include damages against party and sureties. AT the trial, the amount of
damages to be awarded to either party, upon the bond of the adverse party, shall be claimed,
ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57.
Sec. 9. When final injunction granted. If after the trial of the action it appears that the
applicant is entitled to have the act or acts complained of permanently enjoined, the court shall
grant a final injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary mandatory
injunction.

Witness Preparation Generally


A lawyer has a duty to prepare a witness to testify. This preparation may include discussion
concerning the application of law to the events in issue.But "[a]n attorney must respect the
important ethical distinction between discussing testimony and seeking improperly to influence
it." Geders v. United States, 425 U.S. 80, 90 n.3 (1976); Hall v. Clifton Precision, 150 F.R.D.
525, 528 (E.D. Pa. 1993). Thus, the prohibition of counseling or assisting a witness to testify
falsely also applies to the influence that an attorney may have on the substance of a witness's
testimony in the preparation process."An attorney enjoys extensive leeway in preparing a witness
to testify truthfully, but the attorney crosses a line when she influences the witness to alter
testimony in a false or misleading way." Ibarra v. Baker, 338 F. App'x 457, 465 (5th Cir. 2009)
(citing John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989)). A lawyer may
inform the witness of questions to be asked on direct examination, advise the witness of potential
questions to be asked on cross-examination, describe the deposition and trial process, and
caution against loquaciousness or excessively long narratives. Steven Lubet, Expert Witnesses:
Ethics and Professionalism, 12 Geo. J. Legal Ethics 465, 471 (1999). A lawyer may tell a witness
that his or her responses during a preparation session are misleading, confusing, unclear, or likely
to be misinterpreted or misconstrued; may advise a witness to use powerful language and to
avoid jargon; and may suggest other means to help the witness convey his or her meaning.

Preparing a witness to give a rehearsed answer is improper if the purpose for doing so is to
mislead the finder of fact or frustrate the inquiring party from obtaining legitimate discovery. A
prime example is the document known as the "Script Memo," which was inadvertently disclosed
by a novice lawyer to defense counsel, and has been the topic of extensive discussion and debate
on the issue of witness coaching. See, e.g., Abner v. Elliot, 706 N.E.2d 765, 767 (Ohio 1999); S.
Rep. No. 108-118 (July 21, 1993), Fairness in Asbestos Injury Resolution Act, at 8595 (Script
Memo reprinted at 10931); see also "Witness Preparation Memos Raise Questions about Ethical
Limits," 14 Laws. Man. On Prof'l Conduct (ABA/BNA) 48 (1998) (discussing numerous
examples, including In re Eldridge, 82 N.Y 161 (1880) (A lawyer's duty is to "extract the facts
from the witness, not to pour them into him; to learn what the witness does know, not to teach
him what he ought to know."); EEOC v. Mitsubishi Motor Mfg. of Am. Inc., No. 96-1192 (C.D.
Ill. Oct. 23, 1997) ("[T]he memory joggers' that Mitsubishi finds so objectionable are probably,
in most cases, no more suggestive than Mitsubishi's own communications with its people before
a deposition."); Joseph D. Piorkowski Jr., Note, Professional Conduct and the Preparation of
Witnesses for Trial: Defining the Acceptable Limitations of Coaching, 1 Geo. J. Legal Ethics
397, 401 (1987) (surveying the law concerning the practice of suggesting particular words,
indicating that lawyers are prohibited only from attempting to influence the intended meaning of
a witness's testimony on a material issue)).

When Does A Lawyer's Demand Letter Become Extortion? | Litigation & Trial Lawyer
Blog
see - When Does A Lawyer's Demand Letter Become Extortion? | Litigation & Trial
Lawyer Blog

THIS ARTICLE ON DEMAND LETTER AS EXTORTION SHOULD BE READ BY ALL


LAWYERS WHO WISH TO STICK TO LEGAL ETHICS AS THEIR PRACTICE
GUIDE.

"x x x.

When Does A Lawyers Demand


Letter Become Extortion?
Conventional legal wisdom holds that 95% of lawsuits settle. Is that true? Maybe
not, according to this 2009 analysis, but its clear that most civil disputes are indeed
resolved by the parties before the trial, appeal, and judgment enforcement process
is completed. That, in turn, leads civil litigators to spend far too much time and
energy trying to psychologically manipulate their opponents into capitulating.

Another fact is that civil litigators tend to be, both by training and by nature,
writers.The Curmudgeons Guide to Practicing Law, written primarily from a
litigators perspective, emphasizes repeatedly the importance of taking writing
seriously and of producing briefs, memos, and letters of which the author can be
proud. There are quite a few litigators who have spend more time agonizing over
word choice, sentence construction, and synonyms is my opponents
argument frivolous, meritless, groundless, irrelevant, immaterial, not germane,
inapposite, inapt or just plain wrong? than they have perusing the relevant case
law.

Those two factors create a combustible mix in the demand letter. Thousands of
demand letters are sent every day and they are, by and large, boring: heres why I
think Ill win the case, heres what my clients damages are, and heres how much
Im asking you to pay. They only get exciting when: (1) the damages exceed the
available insurance policy limits, and the plaintiffs lawyer is trying to set up the
insurance company for claim of bad faith; (2) when the lawyer threatens to cause
harm by way of the legal system itself (e.g., the infamous legal equivalent of a
proctology exam letter, which was reversed on appeal); or, (3) when the plaintiff
attempts to threaten the defendant with some consequence beyond the mere
pursuit of the lawsuit, like exposing them to embarrassment or criminal prosecution.

The third part is where the problem comes in: the definitions of embezzlement and
blackmail differ from state to state, but, by and large, an attempt to obtain money
from someone else by threatening to expose them or report them to the authorities
arguably constitutes embezzlement or blackmail. So, when does a lawyers
demand letter become extortion?

This isnt an easy question to answer. Though criminal law has plenty of gray areas,
we as a society try to avoid them (e.g., the rule of lenity), and imposing criminal
liability on lawyers acting within the scope of their representation of others poses
significant Constitutional due process and right to jury trial problems.

The federal courts generally dont consider any litigation threats to be


extortionate. Sosa v. DIRECTV, Inc., 437 F.3d 923, 939940 (9th Cir. 2006)(we do
not believe the Hobbs Act imposes liability for threats of litigation where the
asserted claims do not rise to the level of a sham.); United States v.
Pendergraft, 297 F.3d 1198, 1208 (11th Cir.2002)(holding threats to sue a public
entity cannot constitute Hobbs Act extortion, even where supported by false
testimony and fabricated evidence); I.S. Joseph Co. v. J. Lauritzen A/S, 751 F.2d 265,
267 (8th Cir. 1984) (holding threats of groundless litigation cannot constitute
extortion under the Hobbs Act); cf. Vemco, Inc. v. Camardella, 23 F.3d 129, 134 (6th
Cir.1994) (holding threats to enforce even a fraudulent contract not extortion under
RICO); but see United States v. Sturm, 870 F.2d 769, 774 (1st Cir. 1989)(a Hobbs
Act prosecution may be based on a creditors fear of nonrepayment).

The state courts, however, have been more open to the idea of criminalizing and
creating liability for improper demand letters. The Hynes case in New Hampshire,
for example, involved a lawyer sending off demands to salons for $1,000 to settle
dubious sex discrimination claims arising from their charging of different rates to
male and female customers. The New Hampshire Supreme Court affirmed the
lawyers extortion conviction. Scott Greenfield concluded, My guess is that 19
letters [to salons] is probably over the line. But a conviction for extortion? Thats a
bit much too.
Marty Singer, the Hollywood lawyer whose flamboyant demand letters have graced
these pages before, just won a partial victory from a California state appellate court,
which reversed a trial courts ruling that one of his demand letters could constitute
criminal extortion. In the letter, Singer, on behalf of a partner in a restaurant and
nightclub consortium, sent the other two partners in the consortium an otherwise
routine letter alleging embezzlement, conversion and breach of fiduciary duty,
enclosing a draft complaint, and demanding settlement within five days.

Thats all standard fare, but Singers demand letter included something else: a
claim the recipient was 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, and pointing out that, When the Complaint is filed
with the Los Angeles Superior Court, there will be no blanks in the
pleading.

The recipient sued, alleging, inter alia, civil extortion based on the demand letter,
claiming that the threat to reveal the sexual liaisons was extortionate. The California
appellate court held that Singers demand was not extortion and that it was
protected by the litigation privilege. Putting aside some California-specific aspects
of the case (like the operation of Californias anti-SLAPP law), the Court held:

[T]he secret that would allegedly expose him and others to disgrace was
inextricably tied to Arazms pending complaint. The demand letter accused Malin of
embezzling money and simply informed him that Arazm knew how he had spent
those funds. 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. We cannot conclude that the exposure of Malins
alleged activities would subject him to any more disgrace than the claim that he
was an embezzler.

This inextricably tied reasoning has some superficial appeal, but it cannot, in my
humble opinion, be squared with the chief California case on extortion-by-demand-
letter, Flatley v. Mauro, 139 P. 3d 2 (Cal. 2006).

In Flatley, the California Supreme Court held that a letter demanding seven
figures sent to Michael Flatley (yes, that Michael Flatley) by a lawyer representing
an alleged rape victim was, indeed, extortion, because, At the core of Mauros
letter are threats 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 Robertson, plus assertions that, in the course of the litigation,
information about Flatleys wealth, tax, and immigration status would be found and
filed with the Court.

Was the letter in the Flatley case more aggressive, hostile, and belligerent than
Singers letter? Certainly. Could it have lead to a state bar disciplinary investigation
against the lawyer? Id sure hope so. But those threats were just as inextricably
tied to his clients claims as the threats in Singers letter were, and in the end the
essential threat was the same: settle with me, or well file a public lawsuit
that will include the publication of private facts that will embarrass you.

Im glad to see Singers exoneration for what looks more like zealous advocacy in
pursuit of a legitimate claim than blackmail in support of a sham claim, but the
disparate treatment raises an important question: why criminalize and create
liability for one demand letter but not the other? The primary difference
between the two letters was in tone, not in the intent of the sender or in the effect
upon the recipient. Theres no evidence that either lawyer knowingly sent the
letters as part of a sham claim. Rather, each lawyer, serving as zealous advocates
for their clients, tried to gain settlement leverage over the opposing party by
pointing out that, in the course of the litigation, damaging facts would likely come
out a concern the defendants own lawyers should also be raise with the
defendant.

The Model Rules of Professional Responsibility have a relevant rule, Rule 4.4
(Respect for Rights of Third Persons), which says: in representing a client, a
lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person (Emphasis added). Was there a
substantial purpose to Singers letter and the letter sent to Flatley? I believe so:
the purpose was to fully inform the defendant as to what information the plaintiff
believed would become public if the was filed. If the claim isnt a sham, and theres
a legal purpose to the content of the demand letter, then why should the demand
be illegal?

In this administrative complaint, a lawyer is charged with violation of Rule


19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand
letter the contents of which threatened complainant with the filing of criminal
cases for tax evasion and falsification of documents.
Indeed, the writing of demand letters is a standard practice and
tradition in this jurisdiction. It is usually done by a lawyer
pursuant to the principal-agent relationship that he has with his
client, the principal. Thus, in the performance of his role as agent,
the lawyer may be tasked to enforce his clients claim and to take
all the steps necessary to collect it, such as writing a letter of
demand requiring payment within a specified period. However,
the letter in this case contains more than just a simple demand to
pay. It even contains a threat to file retaliatory charges against
complainant which have nothing to do with his clients claim for
separation pay. The letter was obviously designed to secure
leverage to compel complainant to yield to their claims. Indeed,
letters of this nature are definitely proscribed by the Code of
Professional Responsibility.

3. Section 30, Rule 138 of the Rules of Court


4.