Poor Bill!

From ABC, as the Bill Cosby horror continues:

The 77-year-old comedian filed a lawsuit today against Judy Huth, who claims Cosby forced her to perform a sex act in 1974 at the Playboy Mansion, when she was 15.

In documents obtained by ABC News, Cosby alleges that not only is Huth lying but that she filed the lawsuit after failing to extort money from him. Cosby is asking a judge to dismiss the lawsuit and is seeking monetary damages from Huth and her attorney.

In his filing today, Cosby says Huth’s lawyer approached the comedian’s attorney, Marty Singer, last month and made “ominous references” to ‘criminal penalties.'” According to the lawsuit, Huth’s lawyer demanded $100,000 for her silence, and later increased the amount to $250,000 as additional women came forward.

“Through her lawyer, Plaintiff made extortionate claims to Mr. Cosby (through his counsel) about criminal penalties, coupled with ever-increasing demands for a six-figure payday to keep quiet about her long-since-expired claims,” the documents state.

The suit claims that after Cosby’s attorney rejected Huth’s claims and accused her of extortion, her attorney filed a lawsuit two days ago against the comedian.

In relation to this development, my indispensable story scout, Fred, asks:

“The legal profession must have some ancient and passionately held standards for how to offer a confidential settlement without sliding into blackmail, which Cosby’s lawyers accuse the plaintiff of doing. How do those work, and which side’s lawyers (if either) are most likely to be acting ethically?”

The issue is pretty ancient, all right, but it’s also murky, and has become murkier with passing years. Once upon a time, the American Bar Association had an ethics rule that said, “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Later the provision was dropped, on the theory that it was too vague and could constrain legitimate negotiation. Some jurisdictions, like the District of Columbia, New York and Connecticut, retained it, but they also emphasize the word “solely.” That means that a lawyer who says, “Pay my client $25,000 or we’ll get you charged for rape, and that will ruin you!” has probably breached the rule, while one who says, “Look, we want to handle this as quietly as possible, but if you won’t be fair, you’ll leave us no choice but to seek a criminal indictment. Just thought you should know” has tiptoed within the rule’s bounds. What’s the difference? Not much.

The question of whether such a conversation edged into extortion territory often rests on whether the civil claim involved is legitimate and the settlement being asked is reasonable. As an ABA committee examining the topic put it,

…[T]he Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges against the opposing party in a civil matter to gain relief for her client, provided that the criminal matter is related to the civil claim, the lawyer has a well founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process. It follows also that the Model Rules do not prohibit a lawyer from agreeing, or having the lawyer’s client agree, in return for satisfaction of the client’s civil claim for relief, to refrain from pursuing criminal charges against the opposing party as part of a settlement agreement, so long as such agreement is not itself in violation of law.

New York, which still has the old prohibition, is not much more definitive:

In our view, there is no universal standard to determine whether a letter “threaten[s] to present criminal charges.” Such a determination requires the examination of both the content and context of the letter. In our view, a letter containing an accusation of criminal wrongdoing likely constitutes a threat, especially when coupled with a demand that the accused wrongdoer remedy the civil wrong. Whether the accusation is general (simply stating that the Broker’s conduct violates the criminal law) or specific (stating that the Broker’s conduct violates particular provisions of the criminal law), such an accusation serves the undeniable purpose of coercing the accused wrongdoer. We point out, moreover, that a lawyer who sends a letter containing such a communication is exposed to professional discipline based upon the disciplinary authorities’ interpretation of the lawyer’s intent in sending the letter or statement.

In the Cosby case, however, the crime under discussion is rape, so I find it hard to believe that noting the obvious—“Uh, you do know this is a crime, right, Bill?”–would be found to be extortion. “Pay for what you did or else,” with “else” meaning “we sue you or even  go to the cops,” is a too useful a weapon in the normal course of what lawyers do to interpret the rule against it strictly. I doubt that “ominous references” to criminal charges puts Huth’s lawyer over the line. This seems like one more stalling tactic by Cosby’s lawyers as the noose gets tighter. I don’t envy them.