“Litigation is coercive”

by David Nieporent on March 19, 2007

Many commentators over the years have compared litigation to extortion. In Texas, it turns out that there’s at least some line between the two. Last week, San Antonio attorney Ted Roberts was convicted on three of five counts of theft for his role in a blackmail scheme. The scheme — previously discussed on Overlawyered in Jun. 2004 , Sep. 2005, and Feb. 2007 — involved having his wife, Mary, pick up married men on the internet, have sex with them, and then threaten to sue them (and reveal their sexual activities) for ruining his marriage unless they paid him big sums of money.

If you think that’s low, consider that Roberts falsely told his victims that the money they paid would go to a charity; he instead spent almost all of the money on a new $635,000 home. It was that fact that apparently convinced the jury, which didn’t have much sympathy for the adulterous men, to vote to convict.

It might sound unconscionable to normal people, but Roberts had found someone to defend him:

Support for the accused Ted H. Roberts and for his creative response to his wife Mary’s adultery came from an accomplished fellow attorney with more than 44 years’ experience, including a term as president of the State Bar of Texas.

Testifying for the defense, Broadus A. Spivey voiced no qualms about the way Roberts extracted $155,000 from four of his wife’s lovers by threatening to file litigation that would embarrass them and alert their wives and employers to their infidelities.

“Litigation is coercive,” Spivey explained to jurors. “That’s part of the nature of the beast.”

The seasoned lawyer offered a voice of experience, and the defense took care to note for jurors his multiple board certifications, awards and various distinctions.

Spivey might not quite be an impartial witness, though; he represents the Roberts duo in their civil lawsuit against the newspaper that first reported their scheme.

Still to come: the trial of Roberts’ wife on the same charges.

{ 5 comments }

1 Bob Smith 03.19.07 at 5:21 am

Since they were part of the same scheme, why weren’t the defendants tried together? Given that they weren’t, my bet is that Mrs. Roberts won’t be convicted on as many counts and will receive a much lighter sentence. She will probably claim her husband coerced her and/or was abusive, so none of it was really her fault.

2 Brian Moore 03.19.07 at 11:24 am

Even though they got it more or less “right,” is anyone as unimpressed with the jury’s verdict as I am? Their quibble with Roberts isn’t that he ran an extortion scheme; they only seem upset with the fact he lied about the money going to a charity. It seems extortion is good business if commingled with adultery, not charity.

3 Dick 03.19.07 at 3:07 pm

The wife should be charged with prostitution – having sex with the intent of making money from it! He should qualify as a pimp as well.

4 Matthew 03.19.07 at 3:34 pm

Sounds like the defense expert did a better job of explaining why we should be skeptical of all civil litigation than explaining why these acts were acceptable. Not what he meant, I’m sure, but that’s certainly what came out.

5 Mike Perry 03.19.07 at 4:23 pm

This fits with my belief that most of the threats lawyers make directed against non-lawyers ought to be illegal and subject to very heavy civil penalities. By that I mean that one nasty little letter could cost in the range of $100,000, and a repeat $1,000,000.

First, because it’s giving unwanted legal advice without a lawyer-client relationship. Going the other way, lawyers say “pay me if you want to talk.” How revealing that in this case they’re so eager to give so much legal advice without a penny paid them. (The link: greed.)

Second, because much of that advice is bad when it’s not out-right wrong. That’s the key to paying damages. A cease and desist letter with one statement that’s not 100% accurate means a large damage settlement. No lawyer should be permitted to give bad legal advice to anyone but his own client, particularly not to enrich himself.

Third, because being a lawyer doesn’t mean that extortion (as in this bizarre case) isn’t extortion. Crime is crime. This husband lawyer is as guilty as his wife.

After all, we don’t allow a physician to prowl shopping centers, harassing parents and threatening them with legal action for child abuse if they don’t give him money for a surgery he claims is necessary. What’s the difference? Both involve a profession making legal threats against uninformed citizens to enrich themselves.

Although I have to admit, in the IP lawsuit in which I was involved, it was handy to have that 7-page cease and desist letter giving what were essentially all their intended arguments. Once I knew I could handle those, I knew I was safe. But I’m an exception. Like rattlesnakes in my childhood, lawyers simply don’t scare me. That’s not true of most people, and the law should protect them first and foremost. I’d be quite happy to sign an “abuse me like I was my lawyer” waver. For everyone else, a lawyer should be required to “talk nice” until an opposing lawyer enters the picture, one who knows a bluff and a lie when he sees it.

–Mike Perry, Inkling Books, Seattle
Author of the quite legal Untangling Tolkien

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