SC Lawyer, July 2005, #4. Blackmail and you.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, July 2005, #4.

Blackmail and you

South Carolina LawyerJuly 2005Blackmail and youBy John FreemanThere is a saying (that became a song title): "Anything worth doing is worth overdoing." Randy Bell, a former USC School of Law professor and esteemed lawyer and jurist, had a different way of putting it. He was known to point out that two aspirin would give you relief from a headache, but that increasing the dosage to 30 or so would not make you feel 15 times better.

A lawyer with a tort victim client, good facts and a deep pocket defendant is in good shape, much like someone with a simple headache who pops two aspirin. Like anything else, however, a good lawsuit can be trashed by overdoing it. One easy way to overdo it is by committing blackmail.

S.C. Code Ann. § 16-17-640 defines the crime of blackmail broadly. It makes it a felony to seek to extort money or anything of value from people by accusing them of a crime; exposing or publishing their personal or business acts, infirmities or failings; or compelling them to do any act or refrain from doing any lawful act. A related crime is S.C. Code § 16-9-340. It bars the use of intimidation against people involved in the judicial process, including witnesses and potential witnesses.

It is no defense to a blackmail charge in most states that the person being blackmailed actually committed the act that the blackmailer threatens to expose. See Annot., Truth As Defense To State Charge Of Criminal Intimidation, Extortion, Blackmail, Threats, And The Like, Based Upon Threat To Disclose Information About Victim, 39 A.L.R.4th 1011 (1985). It is the act of using knowledge of the wrong for an ulterior purpose that gives rise to the offense.

When committed by lawyers, acts constituting blackmail morph into a variety of possible ethical wrongs. The North Carolina Bar's ethics advisory group recently considered the ethical propriety of lawyers using of threats to expose a plaintiff's status as an illegal immigrant in order to gain leverage and induce a settlement. See Proposed 2005 FEO 3 (April 14, 2005). Unlike South Carolina, North Carolina did not carry over into its version of the Model Rules of Professional Conduct the prohibition against threatening criminal prosecution solely to obtain an advantage in a civil case. This prohibition is found in South Carolina Rule 4.5. Nonetheless, the North Carolina ethics group decried the use of blackmail against the illegal immigrant civil plaintiff by the defense lawyer, finding that:

Threats that constitute extortion, compounding a crime, or abuse of process are already prohibited by other rules. See Rule 3.1 (meritorious claims); Rule 4.1 (truthfulness in statements to others); Rule 4.4 (respect for rights of third persons); Rule 8.4 (b) and (c) [in South Carolina, (d)] (prohibiting criminal or fraudulent conduct).

That lawyers are barred from making extortionate threats does not mean that blackmail is a task to be assigned to clients. Rule 8.4(a) prohibits lawyers from engaging in improper conduct "through the acts of another." A lawyer who suggests that the client (or the client's employees or agents) resort to blackmail invites an ethical charge under Rules 8.4(a) and 1.2(d) (unethical to counsel a client to engage in conduct that is criminal). The lawyer also risks being sued civilly under a civil conspiracy theory, among others.

Obviously, not every disclosure about another's wrongdoing, or perceived wrongdoing, is unethical, much less criminal. Turning in an offender to the enforcement authorities for committing a wrong is normally laudable behavior. Likewise, the rules of evidence sometimes allow proof of a witness' prior bad acts to be brought out at trial where the evidence is relevant to prove the alleged crime. See State v. Carter, 323 S.C. 465, 467, 476 S.E.2d 916, 917-18 (Ct. App.1996); State v. Campbell, 317 S.C. 449, 451, 454 S.E.2d 899, 901 (Ct. App.1994). On the other hand, criminal statutes, ethics codes and other legal standards, like the immigration laws, were not written to give lawyers a way to enrich themselves by scaring people. Unfortunately, little distinguishes a lawyer who resorts to blackmail to coerce private advantage from a mob goon wielding a baseball bat seeking to collect a debt. Lawyers who fail to understand that symmetry invite ethical punishment, criminal prosecution and disgorgement of anything gained by themselves or their clients through their improper behavior.