1 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 1 of 11 Harris County Democratic Lawyers Association July 9 th 2013 CLE Event Robert S. Bob Bennett on Barratry, Ethics and Keeping your License 515 Louisiana St Suite 200 Houston, TX Phone Fax Research performed by Adorah Nworah and Brent Woodall
2 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 2 of 11 WHY SHOULD BARRATRY BE A CRIME: BARRATRY ETHICS AND KEEPING YOUR TEXAS LAW LICENSE The term barratry originates from the Anglo-Norman French word baraterie, meaning deception. 1 It first surfaced in late thirteenth century English society as a term attached to the clogging of court dockets with frivolous lawsuits. 2 By the fourteenth century, local English courts began to prosecute those believed to be guilty of committing barratry. 3 Barrators were generally viewed as trouble makers and by the late sixteenth century, barratry became a blanket term used to denote both vexatious litigation and verbal offenses. 4 The twentieth century witnessed a shift in the way society viewed barratry. With the passage of section 13(1) (a) of the Criminal Law Act of 1967, it was labeled an obsolete crime and ultimately abolished in England and Wales. 5 In Australia, the term was used to refer to litigants who brought up frivolous suits; however it has long since fallen into disuse. 6 Today, barratry is seen as the solicitation of employment to prosecute or defend a claim with intent to obtain a personal benefit (State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994)). Once referred to as adjudicative cheerleading by a national ethics expert, it denotes a wide range of illegal actions taken by attorneys ("Barratry, ). It includes but is not limited to actions such as bringing forth false claims, attorneys trying to get their services 1 PIlarczyk, I.C. (2012, September 11). [Web Log Message]. Retrieved from 2 Jones, K. (2006). Gender and petty crime in late medieval england: The local courts in kent. (p. 103). Suffolk, England: Boydell Press. 3 Ibid. 4 Ibid. 5 Criminal law act (1967). 6 Barratry, Common Law, Retrieved from
3 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 3 of 11 recruited by potential clients within 31 days of an accident, and enlisting the services of third parties to solicit victims and their families. 7 New Texas Legislation concerning Barratry goes into effect on September 1, Besides Barratry being defined under Penal Code 38.12(a), for the first time brings Disciplinary Rule 7.03 into the Penal Statute Does that mean that a violation of Rule 7.03 or 7.02 (a) may lead to a criminal prosecution? Barratry and Your Texas Law License First enacted in Texas in 1876, Barratry was a civil violation that penalized only those who brought forward unsubstantiated and incommodious law suits. 8 By 1901, the statute was amended so that it also prohibited attorneys from soliciting clients. 9 In 1993, the ban was extended to direct-mail solicitation of clients by attorneys, and by 2009 it included in-person solicitation and solicitation via telephone calls. 10 In addition, the Texas barratry statute allows for the prosecution of anyone who violates the law on barratry. In the state of Texas, barratry is a 3 rd degree felony. In addition, the guilty party has to contend with the possibility of a lawsuit that could run as high as $10,000 in damages, as well as the threat of possible disbarment. 11, 12 Barratry differs from general marketing in that it usually involves the attorney or a third party directly contacting potential clients to lure them into signing legal contracts. 13 While a lawyer may place a Texas Bar Advertising Review Committee approved ad in a newspaper or on a billboard without the threat of disciplinary action, it is illegal for him or her to violate these rules in aggressively soliciting clients. Barratry is often linked to other acts of impropriety such 7 Davidian, G. (1992, November 21). Barratry widespread and laws against it narrow, lawyers say. Houston chronicle, p Kassabian, K. (2013, April 22). Clients don't come cheap: The unconstitutional texas client solicitation laws may cost practitioners millions. Retrieved from 9 Ibid. 10 Ibid. 11 Marcotte, P. (1990). Barratry Indictments: DA claims four Texas lawyers solicited bus-crash 12 Holley, J. (2012, Apr 26). Missouri city lawmaker free on bail in barratry case. McClatchy Tribune Business News. 13 Rasansky, J. (2012, July 12). [Web log message]. Retrieved from -ambulance-chasers-on-the-run/.
4 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 4 of 11 as insurance fraud, or attorneys coaxing clients into signing agreements that increase their percentage of the settlement that goes to the attorney. 14 Effective from the 1 st of September, 2009, Section of the Vernon s Texas Statues and Codes Annotated states that an attorney commits barratry if with the intent to gain employment, he or she solicits clients either in person, via the telephone, or through written communication, V.T.C.A., Penal Code Illegal solicitations usually involve the attorney contacting the victim or the victim s relatives within thirty days of an accident. It also extends to cases whereby attorneys solicit potential clients even when it is apparent that the clients already have legal representation. It covers those cases where the injured party or a relative of theirs has indicated a desire not to be hounded by legal representatives; cases involving coercion or containing a misleading claim. According to section of the Government Code in Texas, a client can back out of a contingency fee contract if his or her lawyer is guilty of barratry. 15 The client can also take back any monetary fees paid to the attorney, including actual damages, and attorney s fees. 16 A recent amendment to section (a) and (b) of the Texas Government Code that goes into effect from September 2013 states that in addition, clients who enter legal contracts after being illegally solicited could recover a penalty of $10,000 from the guilty attorney. This provides the necessary financial incentive for clients to turn in lawyers they believe to be guilty of barratry. In 1994, Texas laws on barratry were ruled unconstitutional by a federal district court Judge. In his Moore v. Morales ruling, Judge Hittner stated that "states may not regulate commercial speech merely because a recipient of that speech might be emotionally distressed. 17 " Among the barratry laws ruled unconstitutional was the prohibition against directly soliciting 14 Pinkerton, J., & Bragg, R. (1990, April 10). 3 lawyers go to court on bus wreck barratry charges. Houston Chronicle, p See Footnote 11, page Aaronson, B. (2012, Jun 24). Crackdown intensifies on barratry. New York Times. 17 Urban, J. (1994, January 20). Texas laws on barratry ruled unconstitutional. Houston Chronicle, p. 1.
5 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 5 of 11 prospective clients via mail within 31 days of an arrest or summons. 18 In Ficker v. Curran (1997), the United States Court of Appeals for the Fourth Circuit ruled that a Maryland law that banned direct-mail solicitation of criminal and traffic violators within thirty days of an arrest was a violation of the attorney s First and Fourteenth Amendment right. In 1995, Texas barratry statutes were widened to include prohibiting anyone from financing a barratry scheme or soliciting employment. 19 In the past, such offenses were limited to only those in the legal and health-care profession. 20 According to section (a) of the Texas Government Code, a client can void a fee agreement if his or her attorney is guilty of barratry. 21 Under this statute, clients can recover all the legal fees paid to guilty attorneys, expenses paid to those lawyers eligible for a quantum meruit award, actual damages, and attorney s fees. 22 Section (c) of the Texas Government code allows those clients who did not enter into fee agreements with attorneys guilty of barratry to recover a $10,000 penalty from the guilty lawyer, in addition to actual damages, and attorney s fees. 23 In 1993, Walter Oji, a Houston based lawyer was charged with barratry after sending a paralegal to the family of a deceased accident victim for solicitation. 24 In 1989, four Alton Texas lawyers faced barratry charges for soliciting clients after a school bus accident that left twenty one children dead and sixty injured. 25 One of the people solicited testified that some lawyers had gone as far as luring her with the promise of lavish gifts. 26 In 2012, a Corpus Christi 18 Ibid. 19 Staff. (1995, April 1). Closing loophole/legislation would tighten state's barratry statutes. Houston chronicle, p Ibid. 21 Westerheim, S. R. (2011, August). Bill creates new civil remedies for barratries. Retrieved from 22 Ibid. 23 Ibid. 24 Makeig, J. (1993, July 15). Houston lawyer arrested on barratry indictment. Houston chronicle, p See Footnote 11, page Ibid.
6 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 6 of 11 attorney, Benito Garza, had his law license revoked, after he was found guilty of barratry. In addition, he was made to pay $6000 in fines, and faced a ten year probation. Just last year, a Missouri City democrat, Ron Reynolds, was charged with barratry after an allegation was made that a chiropractor firm withheld services from clients until they agreed to sign a contract that appointed Mr. Reynolds as their legal counsel. 27 Houston lawyer, Marcela Halmagean, claimed that after she suffered a motor accident, Reynolds used a representative to solicit her. 28 Although the case was dismissed, Ron Reynolds once again faces barratry charges. The recent charges were leveled against him on the 25 th of March, Seven other Houston based attorneys, including Reynolds allegedly procured the help of a third party to illegally solicit clients involved in auto accidents. The quarter of a million dollars barratry scheme allegedly made payments to a Robert Valdez who in turn went through Houston police records, singling out those related to auto accidents. 30 He convinced the accident victim to seek the services of an attorney he was financially indebted to. 31 A confidential informant stated that she had worked alongside Robert Valdez while he solicited clients for Ron Reynolds and the other attorneys. 32 Furthermore, she allegedly witnessed Reynolds handing Valdez an envelope containing hundred dollar bills. 33 Reynolds attorney maintains that Valdez is framing Reynolds in order to receive a less stringent sentence from the criminal justice system. 34 Challenges to Texas Barratry Statutes The Texas legislature has gone to great lengths to criminalize barratry; a crime that has long been deemed obsolete by its originators and declared unconstitutional in a number of 27 See Footnote 16, page See Footnote, page Associated Press. (2013, March 26). Lawmaker accused in alleged ambulance chasing ring. Khou 30 Ibid. 31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid.
7 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 7 of 11 prominent court cases. It fails to consider the fact that barratry may indeed be more helpful than harmful. By soliciting clients either directly or through case runners, attorneys are able to inform prospective clients about their legal rights; rights that clients may have been oblivious to ("Barratry ). This ensures that prospective clients are afforded their Sixth amendment right and are therefore able to make well-informed decisions on how to proceed. Barratry is at par with the concept of a free market society because it fosters competition between attorneys. By providing case runners and attorneys with a steady stream of income, it generates revenue for the economy ("Barratry ). Barring attorneys from seeking out prospective clients to inform them of their legal rights is in direct conflict with an attorney s First and Fourteenth amendment rights. Recently, a Dallas law firm questioned the constitutionality of Texas Barratry laws as they relate to the First and Fourteenth amendments. The challenge was brought against two barratry laws that restrict access to court-held information about criminal defendants thus making it harder for the defendants to receive legal counsel ("Barratry ). The plaintiffs set out to obtain declaratory judgment that would find certain portions of Section of the Penal Code unconstitutional ("Barratry, ). Although the suits were dismissed, they serve as proof of the growing discontent with Texas laws on barratry. In Ventura v. Morales (1996), a federal district judge found certain portions of Section of the Penal Code unconstitutional. They included the offense of mailing victims or their relatives before the 31 st day following the accident, and the offense of soliciting clients via mail before the 31 st day following an arrest or summons. 35 The Judge did not believe that there were 35 Cornyn, J. Office of the Attorney General - State of Texas, (1999). Opinion no. jc Retrieved from website:
8 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 8 of 11 sufficient grounds to justify such a ban on commercial free speech. 36 In Florida Bar v. Went for It, Inc. (1995), the Supreme Court made use of a three-part test known as the Central Hudson test to ascertain the constitutionality of a ban on commercial free speech when it is neither misleading nor related to some form of illegal activity. 37 It deduced that for a speech of that nature to be prohibited, the government must show that it has a substantial interest in such a regulation. 38 Secondly, there must be a direct link between the regulation and the government's interest. 39 Finally, the regulation must be specific and unambiguous. 40 While such a test may uphold prohibitions on soliciting clients among accident victims as was the case in Florida Bar v. Went for It, Inc. (1995), it would be unable to justify banning attorneys from soliciting criminal defendants. Prohibiting attorneys from soliciting accident victims may be justified on the grounds that the government has a substantial interest to protect the victims from further emotional trauma that may result from attorney badgering. 41 The same is not the case for criminal defendants as their unique circumstance means that their primary focus would be to find an appropriate legal counsel. 42 Furthermore unlike accident victims who have up to two years to file a suit, criminal defendants only have thirty days to find legal counsel, after which they lose their rights. 43 This therefore means that criminal defendants have a higher incentive to seek legal counsel and benefit from solicitation by attorneys. In Ficker v. Curran (1997), The Court of Appeals for the Fourth Circuit stated that "when the state itself is prosecuting a defendant, it cannot lightly deprive its opponent of critical 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid.
9 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 9 of 11 information which might assist the exercise of even a qualified right" Id. at Penalizing lawyers who solicit criminal defendants would be a violation of the defendants Sixth Amendment right to counsel. The former Attorney General of Maryland stated that Unlike the typical personal injury plaintiffs, criminal defendants are in litigation against the State. Thus, the effect of the law, if not its intent, is to make it more difficult for our opponents to get legal representation See Went For It, 515 U.S. at ; Ficker, 119 F.3d at 1156; Turnbull, supra note 99, at In the landmark case of Bates v. State Bar of Arizona, the Supreme Court rendered unconstitutional a complete ban on client solicitation, recognizing that such a ban would be a violation of an attorney s commercial free speech. It went on to state that any restriction on an attorney s commercial free speech must be reasonable. Prohibiting attorney s from directly soliciting criminal defendants is not reasonable. State legislatures seem to be overeager to prohibit any attempt by attorneys to draw clients in, regardless of how tame such an attempt might be. In Zaunderer v. Office of Disciplinary Counsel, (1985), the United States Supreme Court ruled on the issue of whether a state could sanction targeted advertising. 44 The case involved an attorney placing an ad in an Ohio newspaper which targeted women that had been injured by a contraceptive device. 45 The Ohio Office of Disciplinary Conduct maintained that targeted advertising presented the same set of problems inherent in in-person solicitation. 46 The Court however held that targeted advertising was neither overreaching in nature, nor did it infringe on the privacy of those being solicited. 47 Furthermore, in March of 2010, a U.S Federal District Court Judge in Austin Texas, Lee Yeakel, lent credence to earlier rulings on direct-mail solicitation of arrestees when he declared that it is 44 Footnote 8, page Ibid. 46 Ibid. 47 Ibid.
10 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 10 of 11 unconstitutional to ban attorneys from sending written solicitations to arrestees within thirty days of the arrest. 48 In 2009, Houston based attorney Christopher Villasana challenged the constitutionality of Texas barratry laws. 49 He stated that Texas Barratry statutes were too broad and should be limited to only those solicitations that were misleading or deceptive. 50 He argued that instead, it operates as a complete and total ban against the proscribed communication, and no warnings or disclosures made with the communication, regardless of how truthful or informative the communication may be, can rescue the communicator from committing an offense under the broad sweep of the prohibitions. 51 A district court judge ruled in his favor stating that it was unconstitutional to bar attorneys from in-person, written, and telephone solicitation. 52 The ruling was later reversed by the Fifth Circuit Court of Appeals. 53 It remains to be seen why barratry, a term originating from the word deception, should be attached to communications that are neither deceptive nor misleading. The only crime being committed by these attorneys is their attempt to eke out a living. Texas attorney Bobbitt, of the Sullo & Bobbitt law firm recently challenged the constitutionality of section of the Texas Government Code as it relates to section (d)(2)(c) of the Texas Penal Code. He claimed that such a statute violates attorneys First and Fourteenth amendment rights to commercial free speech. It appears that although the court in Moore v. Morales held that the criminal barratry statute prohibiting direct-mail solicitation is unconstitutional, the Texas Legislature has gone ahead to ignore the court's ruling. The 48 Fikac, P. (2010, March 27). Doc, lawyer solicitation ban tossed. My San Antonio Tennissen, M. (2011, June 28). [Web Log Message] Ibid. 51 Ibid. 52 Ibid. 53 Ibid.
11 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 11 of 11 legislature still holds attorneys financially liable to clients that are solicited through direct mail. This means that attorneys that solicit their clients via direct mail could potentially be sued under the civil barratry statute. The case was brought before a federal district court in Dallas. Failing to address the issue being contested, the court declared that federal courts can not consider the merits of a case unless it presents an actual controversy, as required by Art. III of the Constitution and the Federal Declaratory Judgment Act, 28 U.S.C Miss. State Democratic Party v. Barbour, 529 F.3d 538, 544 (5th Cir. 2008) (quoting Steffel v. Thompson, 415 U.S. 452, 458 (1974)). It is interesting to note that the Attorney General s argument was completely founded on Bobbitt s lack of an Article III standing as opposed to any concrete evidence that invalidated Bobbitt s claim. The federal district court dismissed Bobbitt s claim on the grounds that there was no actual injury and that a declaratory judgment was unlikely to address the issue. 54 He was however granted leave to replead and The Bobbitt case is presently on the docket of the Fifth Circuit Court of Appeals. 55 The Texas legislature has turned a blind eye to earlier court rulings and opinions that have found the Texas Criminal barratry statute to be unconstitutional. By giving solicited clients the go-ahead to sue their attorneys, the Texas legislature deliberately ignores the Moore v. Morales ruling which declared that it was indeed a violation of an attorney s commercial free speech to curtail direct-mail solicitation of clients. Attorneys have found themselves in a tough spot due to the contradictory facts surrounding section of the Texas Government Code. It makes no sense for the Texas Legislature to continue to back a statute that has been declared unconstitutional by the courts. By enacting a civil penalty directed at attorneys who solicit clients 54 Footnote 8, page Ibid.
12 Why should Barratry be a Crime: Barratry Ethics and Keeping your Texas Law License Page 12 of 11 via direct-mail, the legislature ignores precedent set forth in court cases like Ficker v. Curran and Moore v. Morales. One of the reasons why the Texas legislature continues to uphold barratry statutes is to protect the moral values of the legal profession. If this is indeed true, the legislature needs to start entertaining the notion that barratry laws may be having the exact opposite effect. The civil penalty attached to barratry has led to an increase in lawsuits brought against attorneys by their fellow colleagues. 56 This does not paint a good portrait about the legal profession; on the contrary, it fosters widespread discord among attorneys. Barratry is basically the criminalization of actions that are a fundamental part of a litigious society like the United States Morris, A. (2011, September 12). Battling Barratry; Lawyers publicize new law, predict its impact. Tex. Lawyer. 57 Footnote 1, page 1.
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14 FOR IMMEDIATE RELEASE: CONTACT: BOB BENNETT BOB BENNETT & ASSOCIATES PLLC (713) (713) FAX EXONERATION IS JUST THE BEGINNING HOUSTON, TX. February 27, 2013 The Harris County District Attorney s Office today dismissed the criminal charge of barratry against Dr. Tony Ha, a Bellaire chiropractor, and two others, State Representative Ron Reynolds and Adriene Anderson. While Dr. Ha is certainly relieved that this part of the process is behind him, the dismissal of the charges is only the beginning of additional actions and decisions that Dr. Ha faces in the near future. Expunction First and foremost is to pursue having the criminal and arrest records expunged. Texas Law permits someone such as Dr. Ha, who has been arrested and has the case disposed in his favor, to file a court proceeding that essentially requires the District Attorney s Office and law enforcement officials to seal and otherwise destroy records of the criminal case and arrest, effectively eliminating any record of the criminal case and arrest. Both Dr. Ha and his attorney, Bob Bennett, are confident they will receive the full cooperation and support of the District Attorney s Office in seeing to it the criminal and arrest records of Dr. Ha, Ron Reynolds and Adriene Anderson are promptly and properly expunged. Further Investigation Dr. Ha and Bennett will also be discussing whether complaints should be made to proper authorities about the actions of Wendy Baker, and her role as the head of the Barratry Task Force, including her lead investigator, Lonnie Blevins, and whether an investigation by the Texas Rangers or FBI is warranted. Possible Civil Suit
15 Dr. Ha and Bennett must also consider whether the conduct of the District Attorney s Office and its investigator give rise to claims that Dr. Ha s civil rights were violated. Part of that decision process will include reviewing the conduct of Wendy Baker and Lonnie Blevins, and whether their failure to follow procedures by failing to return seized evidence timely, failing to provide an inventory of all items seized during the execution of the search warrant, failing to provide copies of the search warrant and related affidavit in support of search warrant timely, failing to maintain the affidavit for search warrant in the court file as required, failing to timely provide Brady material timely, including recorded statements that were exculpatory, and other related conduct and misconduct by Baker amount to violation of Dr. Ha s civil rights. Possible Grievance Proceeding Ha and Bennett will also and consider whether the actions that may give rise to a civil rights claim also implicate the Texas Disciplinary Rules of Professional Conduct. When reviewing all matters to determine the propriety of filing a civil rights claim, Baker s conduct will also be reviewed to determine whether a reasonable person would conclude that Baker engaged in professional misconduct in her handling of the Dr. Ha case, and other related cases of the Barratry Task Force. Her questionable conduct includes the items referenced above, but also her conduct in a related civil proceeding and her conduct in a grand jury proceeding. All of these actions will be reviewed to determine whether it is appropriate to report Baker s conduct to the Office of Chief Disciplinary Counsel, State Bar of Texas. The TDRPC have specific rules relating to prosecutors and their conduct carrying out their duties. Possible Prosecutorial Misconduct Bennett will be discussing with Ha avenues to pursue relating to possible prosecutorial misconduct by Baker and Blevins in connection with the handling of Ha s case. Bennett has more than 10 years of experience in dealing with issues of prosecutorial misconduct, including playing a prominent role in ferreting out prosecutorial misconduct in the Anthony Graves matter. Despite all of these issues and decisions facing Dr. Ha at this point, Bennett insists that no decisions have been made on how to proceed, or even if to proceed at this time. Bennett reiterates that he and Dr. Ha are pleased with the decision by the District Attorney s Office to dismiss these charges, and notes that the concerns expressed about the conduct of the District Attorney s Office are not levied against Mike Anderson s administration, but rather the administration of his predecessor.
16 Bennett and Jeff Wagnon, an attorney who worked closely with Bennett on the Dr. Ha case, have already been contacted by other attorneys charged with barratry whose cases were investigated by Baker and Blevins, and have asked that Bennett and Wagnon assist them in getting their charges dismissed as well. These two lawyers, Ali Mokaram and Peyman Momeni, firmly believe that Blevins involvement in the investigation of their cases, including the execution of the search warrant at their offices, calls into question the veracity of any sworn statements and testimony made by Blevins in their proceedings, and in turn, every action taken as a result of any sworn statements made by Blevins. Both attorneys also question the motives of Baker and the District Attorney s Office in pursuing criminal barratry charges against them, when barratry could not even be proven using the lesser civil standard of a preponderance of the evidence in a related civil proceeding. Bennett and Wagnon hope that they can effect the same result for Mokaram and Momeni. Bob Bennett & Associates is a Houston based law firm that maintains a statewide practice that specializes in the area of Professional Discipline Defense for doctors, lawyers and judges, and Professional Licensing Issues before the respective Medical and Law Examiner Boards. Bennett has been engaged in this specialized area for more than 15 years, and has enjoyed overwhelming success in the defense of his clients. For more information, contact Bob Bennett at (713) See client and attorney recommendations at ### END ###
17 JUST WHAT IS BARRATRY, ANYWAY?; A QUIZ FOR THE UNWARY Copyright 1999 American Lawyer Newspapers Group, Inc. Texas Lawyer January 18, 1999 Ruth A. Kollman & Robert S. Bennett Here's a little quiz about what you can and cannot do to solicit clients. We will limit our examination to two sources of rules: (1) of the Texas Penal Code, which is the barratry statute; and (2) the Texas Disciplinary Rules of Professional Conduct, VII, beginning with Rule 7.01, which are the advertising rules of conduct. The advertising rules are relevant because 38.12(c) of the barratry statute provides "an exception to prosecution" (not merely a defense) if the advertising rules of conduct permit the solicitation. So grab a cup of coffee and make yourself comfortable. Using these two sources, see if you can determine for each of the following examples if the conduct described violates the barratry statute or one or more of the advertising rules. Warning: The cited sources are not exclusive. Other rules or laws may be applicable to the examples. This article focuses only on the barratry aspects of the described conduct. We haven't provided answers, only questions. We're not sure there are any definitive answers to give. Example 1 You are a lawyer who concentrates in aviation law. You are a participating partner in the multistate firm of Whiteshoe & Huge. A collision between two commercial airplanes occurs at the international airport outside your city. Coincidentally, you are chairing a Client Development Committee meeting at the same time that news of the collision spreads. The firm has never represented either of the airlines involved, but has been anxious to develop their business for some time. You suggest calling and telling the CEOs of each company that Whiteshoe & Huge is sending a team of drivers with limousines to the airport to greet officials from both airlines as they arrive in town to respond to the disaster, placing the drivers and limos at the officials' disposal during their stay. You also propose setting up a hospitality suite for the officials at the airport hotel. Copies of the firm's tasteful, full-color brochures will be placed in the seat pockets in the passenger compartment of each limousine and on the coffee table in the hotel suite. The first issue in this example is whether Whiteshoe & Huge will engage in "in-person" or "telephone" contact to seek professional employment under 38.12(a)(2) of the barratry statute and Rule 7.03(a) of the advertising rules. Also, is the brochure being "sent" to the officials under 38.12(d)(2) or "sen[t] or deliver[ed]" under Rule 7.05(a)?
18 If so, is the brochure a "written communication that concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed" under 38.12(d)(2)(A) of the barratry statute? Is the brochure a "communication" that involves "coercion, duress, fraud, overreaching, intimidation, undue influence or harassment" under Rule 7.05(a)(1)? Does Rule 7.05(a)(1) apply to the activity as a whole or only to the brochure? Does it make any difference that the airline officials are sophisticated business consumers? Does it make any difference if you are seeking the airlines' corporate and regulatory business and not their liability defense work? Should it? Example 2 You are a personal-injury lawyer specializing in mass tort litigation. You are a participating partner in the small, quality firm of Run & Chase. A collision between two commercial airplanes occurs at the international airport outside your city. Coincidentally, you are meeting with your partner about client development at the same time news of the collision spreads. The firm has never represented any of the individuals who were killed or injured in the collision, but has been anxious to begin another mass tort case since the last one settled six months ago. You suggest calling a hotline set up for the victims and leaving a message that the firm is sending a team of drivers with limousines to the airport to greet family members as they arrive into town to identify the dead, placing the drivers and limos at the families' disposal during their stay. You also propose setting up a hospitality suite for the families at the airport hotel. Copies of the firm's tasteful, expensive, full-color brochures will be placed in the seat pockets in the passenger compartment of each limousine and on the coffee table in the hotel suite. This example presents the same questions as Example 1, with one addition: Does it make any difference that the family members are recently bereaved and may be unsophisticated consumers? Should it? Example 3 You are a banking lawyer attending the same Client Development Committee meeting at Whiteshoe & Huge. The next agenda item is the recent announcement by Alphabet Bank that it is moving its national headquarters to your city and opening 40 new branch banks. The firm has never represented the bank. The chair of the committee asks if anyone knows anybody at Alphabet Bank. It so happens that the president of Alphabet Bank is your old sorority "big sister," whom you haven't seen since your college days. You suggest that you call her and arrange a meeting between her and the firm's Banking Law Section. After some discussion, the committee also approves a plan to hire a public relations agency to coordinate a "Welcome Wagon" night for the bank president, her top staff and
19 members of the Banking Law Section, to be held at the country club, complete with live entertainment by Willie Nelson, of whom you know your big sister is particularly fond. The public relations agency will place copies of the firm's tasteful, expensive, full-color brochures next to the centerpiece on each table. During dinner, top members of the Banking Law Section will briefly describe the services the firm provides. Is Whiteshoe & Huge seeking "professional employment concerning a matter arising out of a particular occurrence or event or series of occurrences or events" under Rule of Conduct 7.03(a)? By throwing the Welcome Wagon party, is the firm "pay[ing], giv[ing], or advanc[ing] or offer[ing] to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client" under 38.12(a)(3) of the barratry statute? Will the firm violate 38.12(a)(4) of the barratry statute by "pay[ing] or giv[ing] or offer[ing] to pay or give... money or anything of value" to its public relations agency "to solicit employment" for the firm? Will the president of Alphabet Bank violate 38.12(a)(6) of the barratry statute by "accept[ing] or agree[ing] to accept money or anything of value to solicit employment"? Will the public relations agency? Example 4 Meanwhile, back at Run & Chase, you also know that Alphabet Bank is moving to town and opening 40 new branch banks. You recently read in The Wall Street Journal that bank-teller employees of Alphabet Bank have been complaining about the toxic effects of a theft-deterrent coating the bank requires them to spray on the money in their cash drawers. Unless the tellers wash their hands every two hours, the coating permanently dyes their skin. The idea is that bank robbers won't know to wash after handling the money and will be caught red-handed. The bank tellers appear to be experiencing adverse health effects from repeated exposure to the coating. The firm has never represented any of the bank tellers, who are unionized. It so happens that your brother-in-law is president of the United Bank Tellers' Local. You offer to call him and arrange a meeting with the UBTL. After some discussion, you and your partner also approve a plan for you to hire your brother-in-law to coordinate a "Welcome Wagon" night at the ballpark for UBTL members, complete with free autographed programs. Copies of the firm's tasteful, expensive, full-color brochures will be placed inside the programs. During the seventh-inning stretch, you and your partner will briefly describe the services the firm provides. Run & Chase is faced with the same questions as Whiteshoe & Huge in Example 3. Also, if Run & Chase is seeking "professional employment concerning a matter arising out of a particular occurrence or event or series of occurrences or events," does it make a difference under Rule 7.03(a) of the advertising rules of conduct that you initiated the contact with your brother-in-law, who is a family member? Will the firm violate 38.12(a)(4) of the barratry statute by "pay[ing] or giv[ing] or offer[ing] to pay or give... money or anything of value" to your brother-in-law "to solicit employment" for the firm? Will your brother-in-law violate 38.12(a)(6) of the barratry statute by "accept[ing] or agree[ing] to accept money or anything of value to solicit employment"? Does it make a difference that your brother-in-law isn't a public relations agency? Should it?
20 Unknown Answers If you've been struggling with the barratry statute and the advertising rules of conduct to figure out what, if anything, in these examples is permissible, you are not alone. Each example is designed to underscore the tension between the commercial free-speech rights of lawyers, the state's interest in regulating the conduct of lawyers and the privacy rights of individuals who are or may be the objects of attorney solicitation. A lawyer's right to solicit business is constitutional in magnitude. Commercial speech is subject to First Amendment protection. To determine whether a regulation of commercial speech survives First Amendment scrutiny, the regulation must satisfy a three-prong test set out by the U.S. Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n (1980): (1) The state must assert a substantial interest supporting the regulation; (2) the regulation must directly and materially advance that interest; and (3) the regulation must be narrowly drawn to advance that interest. The governmental interest in prohibiting barratry has been described by the U.S. Supreme Court in Ohralik v. Ohio State Bar Ass'n (1978) as "a legitimate and indeed compelling interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation [and] overreaching.... Protection of the public from these aspects of solicitation is a legitimate and important state interest." For challenges under the First Amendment, the appropriate level of scrutiny hinges upon whether a statute distinguishes between prohibited and permitted speech on the basis of content. For the state to enforce a content-based exclusion, the high court in Frisby v. Schultz (1988) said it must show not only that the regulation is necessary to serve a compelling state interest, but also that it is narrowly drawn to achieve that end. The U.S. Supreme Court has also recognized in Florida Bar v. Went For It Inc. (1995) that the interest expressed must be more than "mere speculation and conjecture," and that "a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." With this constitutional framework in mind, the Texas Court of Criminal Appeals has held in State v. Mays (1998) that the barratry statute does not "define 'solicit employment' in such a way as to implicate 'inherently innocent' activities. The statute clearly outlines the activities [that] constitute barratry, and its parameters fall within historical bounds of barratry by solicitation." The Austin Court of Appeals in Mays had disagreed, holding that the mere tracking of the statutory language "solicit employment" in an indictment was too vague to constitute adequate notice of the charged conduct. In its opinion, the Austin court cited this example of activity apparently prohibited by the barratry statute: Attorney's next-door neighbor tells attorney that his child had a hot bowl of soup poured in his lap at a restaurant and is now in the hospital having skin grafts on the burned skin. Attorney says, "Neighbor, you should take legal action. If you need help let me know or I can refer you to someone who specializes in that type of law."
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