Can a lawyer’s advice be something valuable? The easy answer is, “It depends on how good the advice is.” A deeper question would be, “Is a lawyer’s advice property?” Is it the kind of property that could become the target of extortion, as in, “Give me your advice, or else!”
That was the bizarre point that the Supreme Court of the United States found itself hearing recently. Called into question before SCOTUS was the precise meaning of property as used in the Hobbs Act of 1946 which makes it a crime to to take someone’s property by threats.
Although, frequently used against the mob who utilize threats as a “tool” to commit their crimes, this time a man was accused of threatening to throw the light on an extra-marital affair if a lawyer didn’t give legal advice which could benefit the man’s financial interests.
Girdihar Sekhar, 41, was a managing partner of Boston-based FA Technology Ventures, an investment firm. Luke Bierman, and the alleged adulterer according to Sekhar, was the top attorney for Tom DiNapoli, the state Comptroller. As DiNapoli researched funds in which to invest the state’s pension monies, Bierman recommended DiNapoli forgo investing with FA Tech.
Naturally, not getting the investment rankled Sekhar. He sent some emails to Bierman discussing an ethical issue. In one of Sekhar’s emails, he accused Bierman of torpedoing FA Tech’s chances of doing business with the state by recommending DiNapoli not invest the Retirement Fund with FA Tech. Sekhar then threatened to go to the Bierman’s wife, DiNapoli, the attorney general and the press about the affair. All the lawyer had to do was change his recommendation to DiNapoli.
When Bierman went to the Federal Bureau of Investigation with the emails, the FBI followed the digital trail back to Sekhar’s computer at his home in Brookline. Sekhar admitted he was the sender and he was accused, under the Hobbs Act, of using threats to attempt to force Bierman to change his recommendation to one favorable to Sekhar and FA Tech.
Sekhar’s attorneys moved to have the charges dismissed. They argued that a recommendation from a government staff attorney was not a form of property that was protected under the Hobbs Act.
The judge tossed out the challenge. In his decision, the judge ruled that a lawyers legal advice was a type of intangible property and thereby subject to the Hobbs Act.
From there, the case landed on the desk of the Second Circuit Court which agreed that the general counsel’s advice was indeed property as defined by the Hobbs Act. The Circuit Court ruled that a state staff lawyer had the right to make recommendations without being subjected to threats as a form of influence.
In September, 2013, Sekhar’s attorneys went to SCOTUS with the case.
The petition that Sekhar’s attorneys filed raised a single legal issue. Is a recommendation by a salaried state attorney “intangible property” that could be the target of an extortion attempt as defined by the Hobbs Act.
The petition made the point that the Second Circuit had erred by changing the meaning of property. Sekhar’s attorneys went on to argue that the Second Circuit had run afoul of an earlier decision, National Organization for Women v. Scheidler, 510 U.S. 249 (1994).
Finally, Sekhar’s attorneys argued that the need to avoid “federalizing” many crimes suggested the need to avoid extending the definition of extortion to include legal advice by a paid, government, attorney. The lawyers argued that if what Sekhar did was extortion under federal law as opposed to merely coercion, the result would mean many forms of social protest and activism would fall under the Hobbs Act.
SCOTUS ruled that a lawyer’s advice is something that a lawyer sells to a client. The act of selling the recommendation makes it tantamount to being intangible property, subject to extortion.
The Final Outcome
Sekhar was never found “not guilty.” A jury found him guilty of the conduct that he was charged with, but SCOTUS ultimately determined that the charges did not rise to the level of extortion.
Sekhar’s only other conviction was for interstate transmission of extortionate threats.
In October, 2011, Sekhar began serving his 15-month sentence.
Sekhar is now free on bail, but has become impatient with the slow pace of the courts to expedite the final order which will formally vacate his conviction. In September, 2013, Sekhar fired his attorneys and filed a motion on his own that he hopes will wipe his record clean.