Despite the prohibitions against doing so, some attorneys can’t resist throwing a threat of criminal action into their demand letters. They apparently think (if they give it any thought at all) that an express or veiled threat of criminal action will be protected under the litigation privilege, but that is not the case. As the recent case of Miguel Mendoza v. Reed K. Hamzeh illustrates, if an attorney includes a demand for money in a letter that threatens to pursue criminal action, he or she has committed extortion. As the earlier case of Flatley v. Mauro held, under that circumstance an attorney demand letter is not protected speech because criminal acts are not protected. In such a case, an anti-SLAPP motion will be of no avail, and as the court held in Miguel Mendoza v. Reed K. Hamzeh, such a motion will be viewed as frivolous.
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