Every lawyer accepts certain limitations on his freedom of speech when he seeks and obtains bar admission. We can’t reveal client confidences, for example, even though it would otherwise be fully within our right of free speech. These are the rules of the profession, and we accept them when we accept our ticket.
But when a lawyer in New Hampshire sent a demand letter to a putative defamation defendant, a non-lawyer, did it violate Rule 4.4(a) of the Rules of Professional Conduct because it included a demand for payment of $250,000?
Rule 4.4. Respect for Rights of Third Persons
(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.
Granted, the language is exceptionally vague, as pretty much every demand letter by its nature tends to have the purpose of embarrassing or burdening a third person for engaging in unlawful conduct. That’s pretty much the point of every lawyer letter, to put the defendant in fear of financial loss for having done something alleged to be wrongful.
[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.
At Volokh Conspiracy, Eugene opined that he thought the letter involved was “likely too aggressive,” but not in violation of the rule. Whether a letter is too aggressive, or “obnoxious and rude” as found by the initial hearing panel that found no violation of the rule is a subjective matter. Like beauty, it’s in the eye of the beholder. It would not be a letter I would have written, but then, I’ve read many lawyer letters that make me wince. So what?
But after the hearing panel found no violation, the lawyer was directed to appear for oral argument by the Professional Conduct Committee, which subsequently concluded that the hearing panel “erred” in finding no violation.
The PCC determined that the hearing panel did not appear to have considered or made factual findings related to the objective, “obvious” inquiry. It concluded, however, that a remand to the hearing panel for further factfinding was unnecessary and that it could determine whether Hoppock violated the rule based on “the uncontested contents and context of the May 20, 2019, letter.” The PCC concluded that “it was objectively obvious that the primary purpose of Attorney Hoppock’s May 20, 2019, letter to [the complainant], an unrepresented party, threatening financial ruin, was to burden [the complainant] through intimidation.”
Of course the purpose of the letter was to threaten financial ruin and “burden” the non-lawyer through intimidation. Why else would a demand letter be sent if not to scare its recipient into paying the sum demanded for having engaged in tortious conduct? Is it supposed to be a love letter? Is there something wrong with a demand letter demanding something?
The PCC reversed the hearing panel and held that the lawyer violated Rule 4.4(a), not by being obnoxious and/or rude, but by demanding payment of $250,000 for the alleged defamation. The lawyer was suspended for the violation, not for long but that’s not the point.
The PCC correctly concluded that a determination of objective obviousness in this case required only the application of that standard “to the uncontested contents and context of the May 20, 2019, letter.” With respect to context, an important fact was, as the PCC repeatedly noted, that the complainant was an unrepresented party. We agree with the PCC’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.
It’s hardly unusual that a lawyer sends a letter to a non-lawyer, as it’s hardly unusual that a non-lawyer be the person whom the lawyer is alleging engaged in unlawful conduct. Here, the letter included the routine admonition to take the letter to a lawyer.
I strongly encourage you to pass this letter on to your insurance agent and attorney, without delay.
Even so, this was unavailing to the PCC and the reviewing Supreme Court, which seemed to find most compelling that a demand letter that included a demand for payment from the person who engaged in the alleged tortious conduct who doesn’t happen to be a lawyer, but is urged to give the letter to his lawyer, is a violation of the Rule of Professional Conduct.
If you practice in New Hampshire, govern yourself accordingly, and only send out lawyer letters approved by Hallmark and the state Supreme Court. Or else.
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Ridiculous. The primary purpose of litigation is to burden the defendant in order to obtain money and other relief. The primary purpose of a demand letter is to threaten litigation. No more demand letters at all for NH attorneys, I guess. Straight to suit, it is.
Poor guy got a raw deal here. Punished for the most ordinary of tasks a lawyer undertakes. Extremely harsh and unfair. All the same, I’m glad to have reaffirmed my jurisdiction uses the more favorable to lawyers model rule.
I think the rudeness was not at the center of the violation–but hard cases make bad law.
I thought the most salient part of the letters (relative to intimidation) was:
[Quote] The second letter essentially informed the complainant that if she did not settle, she would have to pay “enormous legal fees.” […]
Where I have experience, you’re allowed to threaten adverse parties with damages, but you are not allowed to threaten them with making litigation burdensome (colloquially, ‘lawfare’). The second letter threatening legal fees tiptoes across that line.
I also think that is why the tone of the letter was emphasized in the opinion–the violation itself is comparatively minor, and the discussion of tone is the court buttressing it. (To clarify, I don’t agree with this reasoning, I just think it was how the court built its argument.) This is why I think the rudeness was not at the center of the violation.
So why did the court make an issue of a comparatively minor violation? The Respondent was a recidivist:
[Quote] Nevertheless, in light of the aggravating factors found by the PCC — most significantly, 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 — we conclude that the suspension imposed by the PCC is the appropriate sanction.
Read this on VC yesterday and pretty much agree with VC and our host, and have seen some cringey letters myself. Though I say this as someone who generally wrote very bland Hallmark demand letters. Maybe, MAYBE, a “private letter of reprimand for ‘obnoxious and rude and overly aggressive,'” if NH does that sort of thing. MAYBE. But seems to me that the ouch of dealing with the “Personal and Confidential” letters (as they’re stamped here in Oregon) would have been sufficient to suggest to the attorney that he may want to take the dial off 11 and maybe back it down to 5 or so.
I know they said it’s about the financial aspect but if “I will not get into it with you and your ill, immature feelings” wasn’t in there then I doubt the bar would’ve acted. It seems like the personal attack was worse although, also itself, shouldn’t have been actionable.