No, you can’t scam the scammers….
I haven’t been monitoring the New York Times’ “The Ethicist” column as much as I once did. After the original author of the feature, Randy Cohen, was jettisoned, the various ethicists, pseudo-ethicists and imaginary ethicists the Times recruited to fill his slot have ranged from inconsistent to incompetent, and I stopped checking regularly until recently. Now the column has a real ethicist, for once: Kwame Anthony Appiah teaches philosophy at N.Y.U., and wrote “The Honor Code: How Moral Revolutions Happen.” He seems to be thorough and explains his analysis using valid ethical systems. He’s a vast improvement over his immediate predecessors, but he goofs too.
A questioner asked about how he should handle scammers who tricked his father out a check. He wrote offering a threat and a settlement. They were to return half the money, or he would report them to the consumer-affairs division of their state’s attorney general’s office and the Consumer Financial Protection Bureau, register complaints on websites and generally see that they suffered for their fraud. His demand: send a certified check, made out to his father, by the deadline. It worked; he got the amount requested, and the check cleared.
“But it was not certified, and it arrived after the due date,” he wrote. “Do I have an obligation to uphold my end of the deal, by not registering complaints about an outfit that is clearly scamming elderly people?”
The Ethicist answered..
“Because they didn’t honor the terms of the deal, you’re not bound to keep it. You can go ahead and report them. In fact, you should. Doing so may help other people they plan to exploit — people like your elderly father, who are particularly vulnerable to their wiles.”
He then went into a long dissertation about whether the writer was obligated to do as he promised even if the terms had been met exactly. You can read that with the rest of the post here, but it’s irrelevant and superfluous, since he’s wrong to begin with.
Any court would find that the initial demand was materially met, and that a settlement of the dispute has been accomplished with offer and acceptance. Since the manner of the acceptance was not exactly as demanded, the inquirer would have been justified in returning the check uncashed and declaring the offer void. Since he cashed the check, however, he consented to the variants of a later date and a non-certified check. The date was a deadline, not part of the settlement offer. The certified check was to ensure that the money was received, not a material aspect of the deal: the writer didn’t have a fetish for certified checks, he just wanted the money. He got the money. Offer, counter-offer (later date, non-certified check), acceptance of counter-offer. Deal complete.
Contract law applies even when you are dealing with a scamster. This time, the victim’s father is the one considering a scam, and the Ethicist, who is clearly not a lawyer, is telling him that it’s okay to make a promise, for that is what a contract is, and to break it because of the prior acts of the party the promise was made to. Wrong. Legally wrong, and ethically wrong. Two wrongs don’t make a right. Stealing from a thief is still stealing (O.J. Simpson is in jail because he didn’t grasp this principle.)
The writer had a dispute with the scamster. He had many options, including pursuing civil or criminal action: it was fraud, after all. Yes, that is time consuming and uncertain. In the alternative, he may negotiate a settlement, in good faith. I agree that the most ethical course is to “go ahead and report them” because “doing so may help other people they plan to exploit — people like your elderly father, who are particularly vulnerable to their wiles.” However, if that is the plan, you cannot ethical use that as a bargaining chip to get any of the money back. That would not be bargaining in good faith. That would be lying, and promising something to induce the payment of money, when in truth there was no intention to keep the promise. That’s exactly what the scammers did to the writer’s father!
This evokes two related rationalizations…
2 A. Sicilian Ethics, or “They had it coming”
The other familiar, equally absurd but even more corrupting manifestation of Rationalization 2 is the “They had it coming” variation or essentially the ethics of the Mob, “The Godfather” and Hollywood revenge fantasies. This argues that wrongdoing toward a party isn’t really wrong when the aggrieved party has aggrieved the avenger. The victim of the unethical conduct no longer deserves ethical treatment because of the victim’s own misconduct.
But the misconduct of a victim never justifies unethical conduct directed against that victim.
and
7. The “Tit for Tat” Excuse
This is the principle that bad or unethical behavior justifies, and somehow makes ethical, teh same unethical behavior in response to it. The logical extension of this fallacy is the abandonment of all ethical standards. Through the ages, we have been perplexed at the fact that people who don’t play by the rules have an apparent advantage over those who do, and “If you can’t beat ’em, join ’em!” has been the rallying cry of those who see the abandonment of values as the only way to prosper.
The very concept of ethics assumes that winning isn’t the only thing, Vince Lombardi to the contrary, and that we must hold on to ethical standards to preserve the quality of civil existence. Although maxims and aphorisms cause a lot of confusion in ethical arguments, this one is still valid in its simple logic: “Two wrongs don’t make a right.”
I find it strange that an ethicist would see the mistake in endorsing this conduct. He’s endorsing vigilantism, by-passing the remedies society has developed under the rule of law for dishonesty and chicanery. Appiah’s only support is utilitarianism, but in order to justify this “balancing,” he must apply Kant’s tests. If this was always our response to wrongdoing, the rule of law and societal ethics would collapse. That’s the true end this means risks. It’s not worth it.
I will assume that the professor will do better in the future.
Ethics Alarms 
Wasn’t the original threat to report the scammers to the authorities a felony?
Extortion?
No. It’s not even unethical for lawyers to do this. Treasurer embezzles from non-profit. He confesses. Board says , “if you pay us back in these installments, we won’t file for criminal charges.” He agrees. Fair, legal and ethical.
You know someone has committed a crime. You say, “I won’t report you to the police if you pay me X.” Extortion. But not if you are asking for money that is legitimately yours, or you have a good faith belief that it is. I think a car mechanic has cheated me and charged me for work that I didn’t ask for. He disagrees. OK, let’s let the state consumer agency and the courts work it out, I say. Or you can pay me half the disputed amount, and I’ll let it go. Not extortion. Negotiation.
Ah. Thanks. That makes sense.
What he did would actually be considered extortion, at least in CA. Not because he demanded money, but because he threatened to report the scamsters to CFPB and AG offices. This rule makes sense from a public policy perspective because it discourages people from using the authorities as leverage and agreeing to essentially cover-up crimes.
It is also likely that his promise not to report would be unenforceable (also based on CA law, and this could definitely vary.) Most courts won’t enforce confidentiality agreements or non-disparagement clauses where the matters agreed to be kept secret are matters of public importance.
Those things said, I think the ethical course of action here would have clearly just been to report the scam to the relevant authorities and sue the people in civil court for the amount. What he did actually do was make an unethical promise, then decided he wanted to unethically break that unethical promise, all because he wanted to have his cake and eat it too (or eat his cake and have it too). Of course, this wouldn’t have been an easy course of action.
Again, I don’t see how you can read the California statute that way. The clear meaning is that it is extortion to take money or property that doesn’t belong to you and rightly belongs to another by threat. The situation at hand is one that is virtually never treated as extortion…if it were, most lawyers would be in jail. Here is the statute:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=518-527
You are saying that if someone takes my wife’s purse and says “possession in 9 tenths of the law,” and I say, return it now or I’m going to the cops, he can say, “Extortion!” Nonsense.
http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule5100.aspx
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=518-527
518. 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.
*the requirement that it “rightly” belongs to another is not a requirement
519. Fear, such as will constitute extortion, may be induced by a
threat of any of the following:
…
2. To accuse the individual threatened, or a relative of his or
her, or a member of his or her family, of a crime.
3. To expose, or to impute to him, her, or them a deformity,
disgrace, or crime.
“The law of California was established in 1918 that belief that the victim owes a debt is not a defense to the crime of extortion. “It is the means employed which the law denounces, and, though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition.” People v. Beggs, 178 Cal. 79, 83, 172 P. 152 (1918). Beggs was cited in dictum in 1929 in People v. Whipple, 100 Cal.App. 261, 263, 279 P. 1008 (1929). It was applied in 1945 in Lindenbaum v. State Bar, 26 Cal.2d 565, 573, 160 P.2d 9, 14 (1945) (lawyer guilty of extortion when he sought to obtain money through his threats although the money “may have been justly due him.”) ”
Gomez v. Garcia (9th Cir. 1996) 81 F.3d 95, 97, as amended on denial of reh’g (June 28, 1996).
I can’t go too far into the research on this, but California does, in fact, prohibit this under the statute. Although I would agree that it likely doesn’t get prosecuted all that frequently, that is likely due to the fact that the person who would have to report the extortion would also have rouse the authorities suspicions as to whether they actually committed the crime the perpetrator was threatening to report. These cases do, however, frequently get prosecuted in disciplinary proceedings against attorneys who don’t properly walk a (very fine) line between proper conduct and extortion.
I would point out that this makes perfect sense, even when looking at the purse-snatcher hypothetical (which I find highly unlikely any prosecutor would prosecute, even assuming the purse-snatcher decided to go to the cops and tell them that he stole a purse and was extorted into returning it). From the eyes of the law, the crime was complete when the purse was taken. Even though we look at it as an understandable attempt to recover the property, what the person who says “give it back or I’ll go to the cops” is actually saying is “I will cover up this crime if you return it.” It is good policy to prohibit that, even if in those circumstances a prosecutor would probably be best served by not pursuing charges in some types of situations which were technical violations.
No, it doesn’t get prosecuted (1945 ethics cases are dead letters, and pre-date the Code and the Rules) because it isn’t extortion. Pay up or I’ll kill your dog: extortion. Pay up or I’ll sue you: not extortion.
Nor was this a debt. This was money obtained through a crime: fraud. A negotiated settlement often involves threats, actual or implied.
The case I cited to was from 1996, the court there thought the cases cited to were still good law, and I am inclined to agree.
An analogous case (and cases on this point are hard to find, once again I would posit due to the fact that people who are victims of extortion who actually committed the crimes they are being accused of are unlikely to seek aid from the authorities) is People v. Serrano, where the defendants kidnapped for ransom who they thought burglarized their home in order to get the alleged burglar to “return their stuff”. The Court stated:
“Extortion and theft are not the same offense.” (People v. Goodman (1958) 159 Cal.App.2d 54, 61, 323 P.2d 536, see also In re Stanley E. (1978) 81 Cal.App.3d 415, 420, 146 Cal.Rptr. 232.) “[G]ood faith, or the fact that the end accomplished by such means is rightful, cannot avail one as a defense in [an extortion] prosecution, any more than such facts would constitute a defense where one compels payment of a just debt by the threat to do an unlawful injury to the person of his debtor….” (People v. Beggs (1918) 178 Cal. 79, 84, 172 P. 152; see also Lindenbaum v. State Bar (1945) 26 Cal.2d 565, 573, 160 P.2d 9—In the crime of attempted extortion, it “is immaterial that the money which petitioner sought to obtain through threats may have been justly due him [,]” and People v. Whipple (1929) 100 Cal.App. 261, at p. 263, 279 P. 1008, citing Beggs for the proposition that “one who obtained payment from a thief of the value of property stolen by *1678 him, by threatening him with an accusation and prosecution thereon unless he made such payment, was guilty of the crime of extortion, without regard to the exercise of good faith in exacting the amount justly due.”) “ ‘[T]he law does not contemplate the use of criminal purposes as a means of collecting a debt. To invoke such process for the purpose named is, as held by all authorities, contrary to public policy [.]’ ” (Merchants Col. Agency v. Roantree (1918) 37 Cal.App. 88, 90, 173 P. 600.) In short, there is no such good faith exception to extortion or kidnapping for ransom. Even if a debt is owing, it cannot be collected by the reprehensible and dangerous means of abducting and holding a person to be ransomed by payment of the debt. The trial court properly excluded the evidence offered for the purpose of proving an invalid defense.”
People v. Serrano (1992) 11 Cal.App.4th 1672, 1677–78.
Not on point, not even close. Kidnapping is a crime. Reporting a crime is a right.
“I’ll sue” is a threat which you are allowed to make under CA law. “I’ll report you to authorities/professional organization/licensing board” is a threat which is prohibited by the extortion statute.
It just isn’t, unless such a report would be false. A citizen has a right under the first amendment to announce the intent to perform a legal act and reasonable conditions under which he would forego such an act, if there is not intent to acquire what is not rightfully his. A threat to engage in legal process on a valid basis is not a “threat” under the statute.
I guess we’ll have to agree to disagree on this one. I can’t find any authority which suggests that intent to acquire what is rightfully yours is a defense/exception to extortion. I think that such a defense/exception would encourage people to agree to cover up crimes, which would be against public policy. I also, however, think that no prosecutor in their right mind would prosecute a technical case of extortion where the person was taking swift and reasonable measures to recover property. In your hypothetical, the person would be able to use reasonable force to recover the purse; I imagine such a defense would also justify the use of reasonable threats of force. I don’t think the same applies in this case, where the person will effectively be agreeing to cover-up of a financial fraud scheme (which would most likely be an unenforceable agreement.)
Have you ever addressed the legal ethics issues related to writing attorney demand letters and avoiding extortion in your seminars? My understanding is that it’s a common problem.
http://www.insidecounsel.com/2014/10/02/extortion-by-demand-letter-whats-the-next-step
Building on what Other Bill said, the promise or threat to report may be illegal (in my state, it is criminal coercion). Similarly, it is considered to be unethical by our lawyer’s board. As a lawyer, I may not threaten a report in order to gain leverage in a negotiation, particularly with another lawyer; if a lawyer has acted unethically, I may not bargain away my duty to report unethical conduct.
And, that is where I think you go astray in your legal analysis. Yes, there was an exchange of promises, but not all such exchanges are enforceable. Most notably, the courts will not enforce contracts in violation of the law; if your drug deal goes bad, do not expect to find a remedy in civil court. Less well-known is that a court will not enforce a contract that is against public policy. I would expect that, if the scamsters sued the writer for damages for breach of contract, the court would turn the scamster away on the ground that the contract violates the specific public policy that resulted in the formation of the Consumer Financial Protection Bureau.
Making the promise? Possibly unethical, if not illegal. Breaking the promise? Legal and ethical.
-Jut
It’s not illegal. X owes me money. I say, return it, or I will file a complaint. Not illegal. Accepting payment not to file a public complaint when there is a duty to do so may well be illegal, but that is not the case here. I’ve read various statutes: they wouldn’t apply; they definitely would not be enforced. In this case, it’s simple: “I believe you have defrauded my father. However, I will regard this matter as a misunderstanding if you settle our dispute with a payment of half the amount in dispute, paid by this date. In the absence of such a settlement, I will be forced to assume that this was a deliberate and malicious act, and will take appropriate action, including the following….” You cannot possibly believe that such an offer would be found to be a violation of this statute, or any similar statute. https://www.judiciary.state.nj.us/criminal/charges/crimcoer.pdf
That is a routine factor in many settlements where criminal charges could bbe brought. It’s not even unethical for lawyers to broker such a deal, as long as it isn’t extortion, and this is not. That contract was emphatically not illegal, but even if it were not enforceable, a broken promise is always unethical, absent changed circumstances. There were none. You’re dead wrong.
Interesting. I was always more of the JG opinion.
A broken promise is always unethical? Even a promise to commit a criminal act?
As for your other point, I don’t know about “routine factor,” but DR 7-105(A) raises the issue. In my state, it falls under 8.4(d), the catch-all provision.
Wrong? Possibly.
Dead wrong?
No. It’s a little more complex than that.
-Jut
It’s dishonest. It’s unethical in respect to the promisee. Of course. Making an uneforceable promise that the promissee lieves is enforceable is deception. It is ethics zugswang for the promisor: anything he does is unethical.
And no state currently uses DR 7-105(A), while 8.4 is in a mutually exclusive set of Rules.
Does everyone else familiar with the details have the same obligation to report?
By the wording, the writer implied – but may not have actually stated – that he personally would not file a report if the money was forthcoming. He has no power over what others do.
If he knew others were going to make a report before making the offer, would the offer itself have been unethical? From a contractual viewpoint, no. From any other viewpoint, yes.
Exactly right!
“2 A. Sicilian Ethics, or “They had it coming”
The other familiar, equally absurd but even more corrupting manifestation of Rationalization 2 is the “They had it coming” variation or essentially the ethics of the Mob, “The Godfather” and Hollywood revenge fantasies. This argues that wrongdoing toward a party isn’t really wrong when the aggrieved party has aggrieved the avenger. The victim of the unethical conduct no longer deserves ethical treatment because of the victim’s own misconduct.
But the misconduct of a victim never justifies unethical conduct directed against that victim.”
You are killing me. Someone wrongs me or hurts my family or friends on purpose , then the kids gloves come off. They don’t deserve to be treated fairly, they deserve exactly what I decide they deserve.
There was a saying that I learned growing up from my Dad and his friends from Brooklyn.
“If someone tries to play hardball with you, shove the bat up their ass.”
As I said. Sicilian Ethics.