The Volokh Conspiracy
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Lawyer Suspended for Over-Aggressive Demand Letter in Libel Case
From an N.H. S. Ct. decision earlier this year in Appeal of Hoppock; I thought the letter involved was likely too aggressive, but I'm surprised that the court found it to be a violation of the professional rules:
Hoppock represented a party with whom the complainant was involved in a dispute over the registration of a trade name. In June 2019, the complainant filed a grievance with the Attorney Discipline Office (ADO) regarding a letter, dated May 20, 2019, that she received from Hoppock…. The letter stated that the complainant had defamed Hoppock's client on social media and warned, "As you will soon find out, legal consequences shall befall you because of your reckless defamatory conduct." The letter continued, in pertinent part, to state:
[L]et me be very clear. I will not get into it with you and your ill, immature feelings toward [Hoppock's client] … which have now landed you in a difficult legal position.
What I will do is sue you for negligently or intentionally (or very recklessly) publishing falsely defamatory statements concerning [the client] to third parties ….
These are actionable statements for which [the client] demands Two Hundred Fifty Thousand ($250,000.00) Dollars in order to settle this problem, which I remind you is totally of your own making….
I will file the Complaint with the Court by June 1st if [the client] has not received your check, in good funds, by that date. Let me be very clear about one more point: You should be very concerned you will have "a lot to lose" by saying the things you have said about [the client]; we will pursue you until you have nothing left, except assets exempt from judicial execution….
In the event you decline [the client's] generous settlement proposal, you are advised and warned not to destroy or alter, in any manner, any evidence that may be subject to or pertinent to any related claims of [the client]….
I strongly encourage you to pass this letter on to your insurance agent and attorney, without delay.
The complainant received a second letter, dated June 6, 2019, along with a draft release and settlement agreement. The second letter essentially informed the complainant that if she did not settle, she would have to pay "enormous legal fees."
The court held that this violated N.H.R. Prof. Conduct 4.4(a), "In representing a client, a lawyer shall not take any action if the lawyer knows or it is obvious that the action has the primary purpose to embarrass, delay or burden a third person":
We agree with the PCC's [Professional Conduct Committee's] conclusion that "[d]rafted as it was to an unrepresented party, it is objectively obvious that the primary purpose of Attorney Hoppock's May 20, 2019 letter was to burden [the complainant] within the meaning of Rule 4.4(a)." Or, stated differently, it would be obvious to a reasonable person that the primary purpose of the letter was to burden the complainant through intimidation….
The court also upheld a 6-month suspension ("two months of which are imposed and four months of which are stayed … for two years on [specified] conditions"), partly because of "Hoppock's 'stipulation to a similar violation of the same rule less than two years prior to him composing the letter to [the complainant],' for which violation, the record reflects, he received a reprimand."
