Extortion: What Your Client Wants
Extortion is one of the most used, abused, misunderstood, and ignored theories of law affecting the area of marital and family law. Family law cases touch upon criminal issues, often with such subtleties that they are overlooked or just considered part of the normal conflict. It is a common occurrence that threats are made directly or indirectly to report the other spouse to, for example, the Internal Revenue Service for any number of wrongs (usually nondisclosure of income) if certain demands are not met.
Consider a scenario whereby the wife’s counsel has advised that in the event a satisfactory settlement is not reached on all issues, many of them monetary, the husband, a medical doctor, will face some problems with the IRS for certain past indiscretions and additionally may face some scrutiny for the improper dispensing of prescription medicines. These threats are made in phone conversations, indirectly in writing, and at mediation, where all conversations are privileged. To some, these tactics may appear to be just another day of squabbling and negotiating in family law. However, this practice is actually a crime, subject to prosecution in Florida, and is a basis to invalidate any agreement or ruling based thereon.
Extortion is set forth specifically in
h. 836.05 (2008), which provides:
Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
It is not uncommon in a marital action to threaten to injure the reputation of another, to “expose another to disgrace,” to “expose any secret affecting another,” to extort “any pecuniary advantage whatsoever,” or to compel the other party to do “any act…against his or her will.” A person advancing these threats, even if not a party to the case, can potentially face criminal liability.1
In McKee v. State, 715 So. 2d 1010 (Fla. 5th DCA 1998), while in the midst of his divorce from his wife, Mr. Turner called Mrs. McKee and discussed an alleged affair between his wife and Mr. McKee. This did not sit well with Mr. McKee, who verbally conveyed to Mr. Turner: “[I]f you call my wife, I will destroy you. I will destroy you and I will destroy your business.” Mr. McKee followed the telephone call by sending a facsimile to Mr. Turner suggesting psychiatric treatment, threatening to contact his business customers, accusing him of drug consumption, and threatening to make certain accusations to a federal agency. Mr. McKee also boasted that he had friends with high connections in the federal government and would use his connections to influence the judge in the divorce.
Mr. McKee was convicted of extortion after a jury trial. While the appellate court found the conduct of Turner and McKee to be “high-schoolish at best,” and suggested that a detention might have been more appropriate than prosecution, McKee’s conviction was nonetheless upheld, the court finding that the conduct was clearly extortion under the statute. While this may appear to the seasoned family law practitioner as just another round of quarreling in a medium-level conflict case, it demonstrates just how severe a penalty can be when tempers get out of control and threats are made.
There are a myriad of techniques that can be used to extort a person in family law. However, the most common are a) threatening to reveal criminal activity of the other party, most often tax fraud; b) threatening to display the private divorce matters to business associates, coworkers, and others for the purposes of embarrassment; c) threatening to reveal violations of professional regulations, such as a doctor’s violation of the technical rules regarding prescription writing; d) threatening to file a complaint against a member of the Bar; e) divulging secrets to other members of the family, including the details of the parties’ sex life, sexual preferences, etc.; and f) threatening to use, and actually using, discovery devices aimed at a spouse’s business associates, customers, and the like who would find the inquiry disruptive and who, inferentially, will be advised of the private life issues, divorce details, and the life of the litigant.
The two most common places in family law these extortion techniques are used is in the discovery process and the formation of a marital settlement agreement.
In discovery, one party will often attempt to drag out embarrassing materials and/or gather information that would be useful in a criminal or civil matter unrelated to the divorce, all as part of a threat to gain strategic advantage in the settlement negotiations. The parties are seldom so subtle as not to make the threat overt, thereby providing factual grounds for a protective order preventing the inquiry.
Courts must carefully weigh the need for financial information against tactics that can potentially ruin a person’s reputation or, even worse, ruin the person’s ability to earn a living. Legitimate discovery into financial matters, even if marginal, is different than merely creating havoc with employees and business associates, which can have serious adverse economic consequences. For example: The wife in a dissolution is an in-house psychiatrist for a prominent hospital. To apply pressure to the wife and force her into settlement, the husband’s counsel subpoenas employees of the hospital for depositions, even though these employees do not have significant information related to the case, knowing that the details of the wife’s ongoing divorce proceedings will only serve to jeopardize her reputation and cause embarrassment. In this scenario, counsel for the wife should file a motion for protective order, reference that the employees who have been subpoenaed lack information relevant to the proceedings, and include language in the motion that cites the extortion statute and alleges that the subpoenaing of these employees has been done purely to harass and pressure the wife.
In the negotiation of settlement agreements, an agreement actually made as a result of extortion is subject to being nullified, set aside, or not enforced by the courts. The most common threat, and surely the one most loved by the clients, is a threat of prosecution or exposure for violations of the federal income tax code. The long-standing law in Florida holds this to constitute extortion and any agreement entered into in response to such threats will be held invalid and unenforceable.2 The threat by a wife to expose the husband’s misconduct in photographing an underage female was held to constitute extortion, warranting a setting aside of the disproportionate and unfair equitable distribution of assets to the wife. In Cooper v. Austin, 750 So. 2d 711 (5th DCA 2000), during extended mediation negotiations, the wife sent a note to the husband threatening to turn him into authorities for allegedly taking nude pictures of an underage female. Thereafter, a mediated settlement agreement was reached in which the wife received an unequal distribution of the marital assets in her favor. The court held that the wife’s demand that the husband either give into her demands or go to jail was clearly extortionate, and her presentation of the extorted agreement to the court was a fraud on the court, making the trial court an instrument of her extortion.3
As demonstrated in Cooper, the confidentiality of mediation does not provide an umbrella of protection for a party engaging in extortion. Extortion is a crime, and as specified in F.S. Ch. 44.405(4)(a)(2), crimes are not protected by the confidentiality privilege in mediation. Thus, statements made by an attorney or a client during mediation that rise to the level of extortion may be introduced before the court at a later date.
Interestingly, while extortion may constitute a violation of a criminal law, it does not give rise to a civil tort or a corresponding action for damages.4 Therefore, it cannot be raised separately by tort action or otherwise during the pendency of the case, which might otherwise provide a procedural vehicle to curtail the conduct early in the case.
It is noteworthy to mention that if done repeatedly by an attorney, the conduct of extortion could actually constitute a violation of the RICO Act pursuant to F.S. Ch 772.104, which lists extortion as one of the criminal actions giving rise to prosecution for racketeering.
Marital and family law is perhaps the most emotional area of the legal system. Thus, it is easy to prey on one’s emotions for financial and strategic gain. However, as demonstrated, preying on a party’s emotions can easily become extortion, subjecting a party to criminal liability. Therefore, as attorneys, it is important to avoid becoming our clients’ instruments of extortion and, moreover, to advise our clients accordingly should they engage in the extortion themselves. Finally, considering the Bar’s focus in recent years on professionalism, attorneys have an obligation to raise the issue of extortion in court with specificity to protect their clients and enhance the practice of professionalism in the legal community.
1 See McKee v. State, 715 So. 2d 1010 (Fla. 5th D.C.A. 1998), for a disturbing example of how a marital spat can result in criminal liability, and just how far the Florida extortion statute can reach.
2 Berger v. Berger, 466 So. 2d 1149 (Fla. 4th D.C.A. 1985); Gordon v. Gordon, 625 So. 2d 59 (Fla. 4th D.C.A. 1993).
3 Cooper v. Austin, 750 So. 2d 711 (5th D.C.A. 2000).
4 Bass v. Morgan, 516 So. 2d 1011 (Fla. 3d D.C.A. 1987).
William H. Stolberg has been in the private practice of law since 1973 in Ft. Lauderdale, practicing exclusively in the area of family law. He is board certified in marital and family law. Mr. Stolberg received his B.S. from Cornell University in 1968 and his J.D. from the University of Florida College of Law in 1973. He is a member of the American Academy of Matrimonial Lawyers and has lectured and written extensively in the area of marital law.
David L. Hirschberg practices family law with Gladstone & Weissman, P.A., in Ft. Lauderdale. He received his Bachelor’s degree, with honors, from the University of Florida and his J.D., cum laude, from the University of Florida Levin College of Law. Mr. Hirschberg is a member of The Florida Bar, Illinois Bar, Broward County, and American Bar associations, and is admitted to practice before the U.S. District Court for the Southern District of Florida. Mr. Hirschberg also serves as the president-elect of the Broward County Bar Association Young Lawyers Section.
This column is submitted on behalf of the Family Law Section, Scott Rubin, chair, and Susan W. Savard and Laura Davis Smith, editors.