By Irean Z. Swan
The idea of zealous advocacy is not a foreign concept to an attorney. In fact, the preamble to the Model Rules provides that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” But when does zealous advocacy exceed the bounds of the law and cross the line into actionable conduct such as extortion? The Second District Court of Appeal recently examined this question again in the case of Geragos v. Abelyan (2023) 88 Cal.App.5th 1005.
Armen Abelyan was an IRS revenue agent who tried to use his status as a special agent to get out of a traffic ticket. Compounding his poor judgment, Abelyan also did this before he received his formal commission as a special agent. Double oops. Unsurprisingly, the District Attorney charged Abelyan with perjury and attempted impersonation of a public officer. Abelyan hired Geragos & Geragos to defend him at trial the next day and paid a $25,000 retainer. For some unknown reason, no one from the Geragos Firm showed up despite multiple calls to the firm. Abelyan was ultimately convicted.
After the trials and after he failed to recover his retainer from the Geragos Firm, Abelyan reported the Geragos Firm to a number of bar organizations and also retained Elliott N. Tiomkin of the Law Offices of Elliott N. Tiomkin to recover the retainer from the Geragos Firm. Ultimately, Tiomkin filed a lawsuit on behalf of Abelyan against the Geragos Firm and two of its attorneys, or the Geragos Parties.
In response, the Geragos Parties filed a cross-complaint against Abelyan, Tiomkin, and Tiomkin’s firm for civil extortion and alleged that Tiomkin had repeatedly threatened to report the Geragos Parties to the State Bar if they did not refund the retainer. Specifically, they allege that Tiomkin violated Rules of Professional Conduct Rule 3.10(a), which prohibits an attorney from “threaten[ing] to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”
Abelyan and Tiomkin and Tiomkin’s firm each filed a special motion to strike the cross-complaint as a strategic lawsuit against public participation under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The trial court granted both motions and the Geragos Parties appealed.
The Second District Court of Appeal affirmed the trial court’s order and found the case distinguishable from Flatley v. Mauro (2006) 39 Cal.4th 299 — the leading case in California on when demand letters cross the line into extortion, which is not a constitutionally protected form of speech that falls within the scope of the anti-SLAPP statute.
Flatley involved Michael Flatley, an Irish entertainer known as the “Lord of the Dance” and an Illinois attorney (Mauro) who represented a woman who alleged that Flatley raped her in a Las Vegas hotel. Mauro sent Flatley a letter demanding $100 million dollars to settle the case and threatened, among other things, to expose Flatley for criminal activity unrelated to the alleged sexual assault, such as violations of immigration law or tax law. The California Supreme Court found the key passage in Mauro’s letter to be where he warned Flatley 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.”
The Flatley court cautioned that its opinion “should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion” — one which the Second District Court of Appeal heeded in finding that Tiomkin’s alleged conduct did not fall within the narrow exception enumerated in Flatley. The Geragos court held the Flatley exception is limited to criminal conduct and not a violation of the Rules of Professional Conduct or a civil statute. It also found that even if the Geragos Parties demonstrate that Tiomkin violated Rule 3.10(a), this does not constitute criminal conduct which falls within the narrow Flatley exception and affirming, yet again, the line between zealous advocacy and extortion.