June 13, 2002
BY NOW a lot of people have heard the story of the high school senior whose parents threatened to sue the teacher who -- apparently quite properly -- flunked her. Now this editorial raises the question that has occurred to me: Why don't we know the names of those parents?
The girl's parents, who have done nothing to deserve the anonymity this and other reports afford them, have performed perhaps even a worse service than the district. Perhaps even worse than the lawyer.
They've made clear to their daughter that failure is never her responsibility. And that is a terrible message for any parent to send.
Yeah, they don't deserve anonymity. Maybe the girl's a minor -- but is there a general rule of never reporting a minor's name? I don't think so. And why not report the parents' names? They're not minors. Yeah, sure, that would get the daughter's name in public. But given that they threatened a lawsuit, well, that goes with the territory. I don't see why they should be cut a break here. In fact, the letter sent by lawyer Stan Massad seems to border on extortion, something that the Arizona Bar should perhaps look into (and if I received such a letter I would lodge a disciplinary complaint): "Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students become relevant, should litigation be necessary." Whether or not this constitutes a crime or a violation of legal ethics isn't for me to say -- but anyone willing to threaten to make private facts public in order to get an action they desire from a public employee surely has no standing in demanding that his/her own privacy be respected.
The press's bizarre incidents of over- and under-sensitivity baffle me.
UPDATE: Reader David Bernstein writes:
Often, the difference between illegal extortion and legal "encouraging settlement" is whether the deman has an attorney's signature. Remember the case of the women who claimed that Bill Cosby had fathered her daughter? If she had cut an attorney in for 1/3 of her claim, she would have been immune from extortion charges, so long as the attorney had a good faith belief that she *might* be telling the truth. Or am I wrong?
Well, it depends. Yes, it's true that filing a lawsuit inevitably means that otherwise private information will become public, and that threatening to file a lawsuit isn't, itself, extortion. The question is, if a lawsuit is sufficiently frivolous (as this appears to be based on the press accounts I've seen and heard), should that rule hold? This ties in with a bigger problem: that of attorneys using threats of frivolous litigation to extort (in the generic, not the specific legal sense) things from people to which they're not entitled. (Look at some of the threatening letters sent by technology companies in IP cases, for example, some of which are worse than Massad's letter).
I've talked with a colleague who specializes in this area, and he believes that a lot of lawyers are doing things that should -- and ultimately will -- subject them to discipline, civil litigation, and perhaps even criminal charges, based on an unjustified belief that anything you do relating to litigation is, somehow, not subject to such sanctions. I believe that this is a subject that deserves far more attention.
Actions like Mr. Massad's certainly serve to bring the profession into disrepute, and to undermine people's faith in the legal system. Unfortunately, people often cave in to them.
UPDATE: Max Power has more on this. But I wasn't talking so much about filing frivolous lawsuits, as threatening to file a frivolous lawsuit. The former may be constitutionally protected (though in some cases I think bad faith should trump that) but it's also subject to sanction via Rule 11, etc., at least in theory. The threats -- which sometimes include objectively false statements of the law addressed to nonlawyers; there was a doozy linked via Slashdot a few months ago that I can't seem to find now -- seem to me to fall outside the First Amendment, and well within the bounds of attorney discipline. The teacher's letter in response, by the way, makes the point that discovery cuts both ways. It also says that the student (whose name the paper removed) is an adult -- so I'll repeat:
Why are the papers keeping the studen'ts name secret?