Posted on by Michael Lowe.
The Three Legal Battlegrounds for Lawyers Accused of Barratry in Texas
When tragedies involving the great loss of innocent lives happens here in Texas, an angry response by grieving loved ones as well as the compassionate and concerned is understandable. Alongside generous outpourings of support come questions of why these things happen – and importantly, who can be held legally liable.
This is happening today with the horrific travesty of the Robb Elementary School shooting in Uvalde, Texas, as some are questioning what legal claims can be filed on behalf of the victims and their families, such as lawsuits against gun manufacturers for damages. See, “Can Gun Manufacturers Be Held Liable for Wrongful Death Claims in the Wake of a Mass Shooting?” written by Richard Console, Jr. and published by JDSupra on June 23, 2022. After all, civil claims against the gun makers survived a challenge to the claimants’ standing in the Sandy Hook Elementary School case several years ago, creating a potential precedent for any Uvalde filing. Posess, Zachary. “A shot in the dark: how the Sandy Hook plaintiffs established legal standing against the gun industry.” Seton Hall L. Rev. 51 (2020): 563.
While nothing can truly resolve the loss felt by grieving loved ones, both federal statutes and state laws exist to try and bring some form of justice in the aftermath of events like these, primarily in the form of financial recompense through the filing of civil lawsuits. It is here where the issue of barratry arises, with the improper and illegal solicitation of clients by lawyers, either directly or through an intermediary (like a funeral director or chiropractor, for instance). Read, “Grief, Greed and the Lawyers: Aftermath: The school bus tragedy was just the beginning. Then lawyers moved in and divided a Texas town,“ written by J. Michael Kennedy and published on May 29, 1990, by the Los Angeles Times.
From an experienced Texas criminal defense attorney’s perspective, it is likely that there will be allegations of illegal and improper solicitation coming out of Uvalde, and lawyers will be facing some serious and life-altering accusations. These may be very complicated matters. Why?
When barratry happens, the Texas lawyer can find themselves facing the need for a zealous defense in three separate and distinct forums: (1) criminal court; (2) civil court; and (3) licensure disciplinary proceedings.
What is Barratry?
Barratry has been defined by the Texas Supreme Court as “… the solicitation of employment to prosecute or defend a claim with intent to obtain a personal benefit.” State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 n.2 (Tex. 1994) with the Texas Court of Criminal Appeals explaining that “…[b]arratry by solicitation has been criminalized in the State of Texas since 1901, when the [Texas] [P]enal [C]ode was amended to outlaw the fomenting of litigation by attorneys at law by soliciting employment.” State v. Mays, 967 S.W.2d 404, 408-09 (Tex. Crim. App. 1998).
1. The Crime of Barratry: Texas Penal Code §38.12
It is defined as a crime in Texas Penal Code §38.12. The crime of barratry in Texas is defined as:
(a) A person commits an offense if, with intent to obtain an economic benefit the person:
(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself or for another;
(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or
(6) accepts or agrees to accept money or anything of value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an offense under Subsection (a);
(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or
(3) is a professional who knowingly accepts employment within the scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).
(c) It is an exception to prosecution under Subsection (a) or (b) that the person’s conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.
(d) A person commits an offense if the person:
(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and
(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person’s employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:
(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;
(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;
(C) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;
(D) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;
(E) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or
(F) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
(e) For purposes of Subsection (d)(2)(D), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person’s relative.
2. The Civil Lawsuit for Barratry: Texas Government Code §82.0651
Improper solicitation is also the basis of a civil lawsuit seeking monetary damages under Texas Government Code §82.0651.
Civil damages can be sought against the attorney pursuant to Tex. Gov’t Code §82.0651, which provides:
(a) A client may bring an action to void a contract for legal services that was procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons, and to recover any amount that may be awarded under Subsection (b). A client who enters into a contract described by this subsection may bring an action to recover any amount that may be awarded under Subsection (b) even if the contract is voided voluntarily.
(b) A client who prevails in an action under Subsection (a) shall recover from any person who committed barratry:
(1) all fees and expenses paid to that person under the contract;
(2) the balance of any fees and expenses paid to any other person under the contract, after deducting fees and expenses awarded based on a quantum meruit theory as provided by Section 82.065(c);
(3) actual damages caused by the prohibited conduct;
(4) a penalty in the amount of $10,000; and
(5) reasonable and necessary attorney’s fees.
(c) A person who was solicited by conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons, but who did not enter into a contract as a result of that conduct, may file a civil action against any person who committed barratry….
3. Disciplinary Procedure and Right to Practice Law: TDRPC 7.03 and 8.04
It also forms the basis of a disciplinary proceeding before the State Bar of Texas which can result in suspension or disbarment (loss of law license) as a violation of Texas Disciplinary Rules of Professional Conduct (“TDRPC”).
Pursuant to TDRPC 7.03 and TDRPC 8.04, both telephone and in-person solicitations by the attorney can result in a range of discipline that can include law license suspension for a period of time or even disbarment. The same punishment is also possible if the lawyer has a third party (like a funeral director or chiropractor) soliciting people on behalf of the attorney.
The Three Battlefields in Barratry Defense
A Texas lawyer will understand that complaints of improper solicitation may well evolve into a complex and overlapping defense in three different forums: (1) criminal court; (2) civil court; and (3) the grievance process of the State Bar of Texas as the licensure body for Texas attorneys. Within these three battlefields, things can become complicated very fast.
For one thing, any attorney facing an investigation into criminal barratry charges needs to know that within the criminal statute itself comes the instruction to the ADA that these cases involve a “…serious crime for all purposes and acts ….” Texas Penal Code §38.12(i). Prosecutors will often take these kinds of legislative characterizations with great zeal. It should not be surprising that an enthusiastic ADA may add other felony charges to these cases if at all possible, such as money laundering charges based upon the attorney’s fee itself.
- For more on money laundering defense, read: 5 Things To Know About Money Laundering In Texas.
Insofar as civil claims involving Texas Government Code §82.0651, the lawyer’s success in representing the client is not only being challenged with negation of the legal representation contract in question, but there is also the potential for pursuing defamation charges (libel or slander) in the aftermath of a successful defense against the initial barratry charges. After all, even the suggestion of impropriety can severely damage the attorney’s professional and personal reputation. For the innocent lawyer wrongfully accused of barratry, civil claims for defamation may be unavoidably necessary. In sum, the lawyer facing barratry allegations may end up as a defendant in one civil matter, and a plaintiff in another one.
Grievance Committee and/or District Court Trial
Finally, there is the challenge to the right to practice law in the State of Texas, either as a suspension or with disbarment. The attorney’s law license can be in the state’s crosshairs. Grievance defense has its own particularities, as this forum involves the internal procedures of the Supreme Court of Texas’ Disciplinary Counsel. The lawyer has the right to pursue a defense before the Bar’s Summary Disposition Panel or before a Texas District Court with either a judge or jury as factfinder.
Anything other than victorious rebuke of a barratry claim before the State Bar of Texas results in a permanent mark on the lawyer’s online public record and the Bar’s perpetual invitation to the media to check out the attorney’s disciplinary history. It is foolhardy for any Texas attorney to underestimate the long-term impact of the barratry grievance complaint, even in the face of criminal charges and/or civil claims.
Punishment for Barratry in Texas
Upon conviction of barratry in a criminal case, the attorney will face sentencing for either a misdemeanor or felony, depending upon the circumstances. The first conviction involves a misdemeanor offense; subsequent convictions are felonies. The most serious? A felony of the third degree, which involves a range of imprisonment between two (2) and ten (10) years.
According to Texas Penal Code §38.12(f)-(h):
- An offense under Subsection (a) or (b) is a felony of the third degree.
- Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.
- An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).
Under Texas law, a civil judgment of barratry defines the underlying legal representation agreement as illegal and therefore null and void. The plaintiffs will be awarded their attorneys’ fees in pursuing their claims, as well as actual damages. Key here is that the statute also provides for a monetary penalty of $10,000 to be paid for each act of illegal phone or in-person solicitation that has been proven to have been done by the defendant- lawyer or their representative.
From Tex. Gov’t Code §82.0651:
(d) A person who prevails in an action under Subsection (c) shall recover from each person who engaged in barratry:
(1) a penalty in the amount of $10,000;
(2) actual damages caused by the prohibited conduct; and
(3) reasonable and necessary attorney’s fees.
Defenses Against Allegations of Barratry
Defending barratry allegations is a delicate and decisive undertaking where intensive scrutiny of the underlying facts as well as the legal bases for the claims is involved. This may need to be done on multiple fronts, sometimes simultaneously, involving discovery and trial under both civil and criminal procedural rules as well as the State Bar process.
Each case is unique and must be carefully considered. For instance, what does the complainant really say happened? Has solicitation really been shown, where there has been “actual communication with the client” under Tex. Gov’t Code §82.0651(c)? This statute requires not only a violation of the specific Penal Code or Disciplinary Rule provisions, it also requires the plaintiff to have been “solicited by” the prohibited conduct. See Tex. Law Shield v. Crowley, 513 S.W.3d 582, 590 (Tex. App.-Houston [14th Dist.] 2016, pet. denied); Nguyen v. Watts, 605 S.W.3d 761, 777 (Tex. App.-Houston [1st Dist.] 2020, no pet.).
Even a whiff that a Texas lawyer has committed improper acts of solicitation can cause great harm to reputation and livelihood. When formal investigations begin, it becomes vitally important for that attorney to build an aggressive defense strategy.