Mark Pestronk
Q: We just found that one of my agency's independent contractors deposited, into her personal account, checks that were made out to our agency. Also, in the recent past, we had a home-based employee quit and refuse to return the laptop we let her use, despite our repeated requests. Since these activities are crimes, is it legal to threaten criminal prosecution by stating that we will go to the police, prosecutor or FBI unless they pay us the money or return our property? If not, is there some exception for lawyers?
A: Threatening criminal prosecution for the purpose of getting money or property is the crime of extortion. So I would counsel against any such threats.
While extortion is illegal in every state and under federal law, the exact definitions vary. In our largest state, California, the criminal code states that extortion "is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right."
If you take out the irrelevant part about public officers and official acts, we see that extortion is using fear to obtain property (money would be considered property). Threatening prosecution puts fear into your ex-contractor or ex-employee, and if you do it with the purpose of obtaining property, then you commit the crime of extortion.
In the definition, the word "consent" is confusing, as it implies something voluntary. Here, though, consent means that the person in fear ultimately agrees to do what you want, as opposed to the crime of larceny, where no consent is involved.
A key word in the definition is "wrongful," which, in this case, would mean that it is done with the main or sole purpose of getting the money or the laptop back. In theory, if your only motivation is to put the thief in jail, then your threat is not "wrongful."
If you merely make the threat and nothing comes of it, then you may have committed attempted extortion, which is also a crime. The fact that the ex-contractor or ex-employee has committed a crime does not matter.
Instead of threatening criminal prosecution, you can threaten a civil suit, and you can state that you will pursue "all available legal remedies," or, even better, "take all necessary steps allowed by law." These statements imply that you won't be taking unavailable or unallowed steps.
Without starting with a threat, you can also actually go to the police, prosecutor or FBI and ask them to prosecute, if you genuinely want the ex-contractor or ex-employee prosecuted. Then, you can tell the ex-contractor or ex-employee what you have done, which ought to scare anybody into paying you back or returning your property.
There is no exception for your attorney, and some states' rules of professional conduct expressly prohibit attorneys from making such threats. When an attorney makes a threat on behalf of his or her client, it is usually the attorney who gets sanctioned, not the client.
On the other hand, if you reach a settlement with the thief, your attorney can draft language to the effect that you will refrain from pursuing prosecution, as the language of a settlement agreement is not a threat.