Posted on
September 9, 2011 in
Professor Neil McCabe, who markets himself as "the smartest lawyer John O'Quinn knew"
(I'll buy that, but I suspect that O'Quinn didn't know Brent Newton), joined the discussion in the comments here about Texas civil liability for barratry. Now he's written a blog post on the same subject.
In comments and in the blog post, Professor McCabe has, like any scary-smart (or even scary smart) lawyer, decided what result he wanted, and then massaged the law to fit the facts:
Of course, a person who brings a lawsuit under Government Code Section 82.0651(c) against an attorney for sending a solicitation letter can argue that (1) the early-dismissal statute is not effective until the Supreme Court generates procedural rules implementing it or (2) Section 82.0651(c) itself provides a “basis in law.” The counter argument is that there is no basis in law, because the statute clearly is unconstitutional, given prior rulings, even though those rulings are not binding precedent for Texas trial courts.
The counterargument goes to the second argument; Professor McCabe doesn't counter the first argument: the early-dismissal statute is not effective until the Supreme Court generates procedural rules implementing it. But you don't have to take the statute's word for it; in Professor McCabe's words, Section 22.004(g) of the Texas Government Code "commands the Texas Supreme Court to develop rules allowing early dismissal of a case…."
The Texas Supreme Court has not yet developed those rules. So right now there is no risk that a plaintiff suing a lawyer for sending a truthful and non-misleading solicitation letter will be poured out and ordered to pay costs and fees under Section 22.004(g) of the Texas Government Code. Yet McCabe insists:
Any lawyer who contemplates bringing a solicitation lawsuit under Section 82.0651(c) should advise the client that he runs the risk of… earlier dismissal plus the award of attorney fees and costs against him. Failure to give such advice could be seen as professional negligence.
Advising clients that a rule that has not been passed (and that is over the distant horizon) applies to their case would more likely be seen as professional negligence.
Professor McCabe doesn't consider another angle: that the Texas barratry statute forbids sending a solicitation letter that "contains a false, fraudulent, misleading, deceptive, or unfair statement or claim." That provision has not been held unconstitutional, and likely is constitutional—lawyers don't have a First Amendment right to send misleading solicitation letters.
I've spent some time reading Houston criminal-defense lawyers' solicitation letters, and while most of them are on the up-and-up, many of them are false, fraudulent, misleading, deceptive, or unfair—at least, misleading or unfair enough to get past summary judgment and create an issue for the jury. "Misleading" and "unfair" are fuzzy terms, and not a high obstacle for a plaintiff to overcome.
I don't know what letter lawyers are doing now. Some have probably quit sending letters; some no doubt bugger on regardless. I haven't heard that anyone has arranged for a friendly plaintiff to file a lawsuit to test Section 82.0651(c), which is what I might do in their position.
But even if the result of the first appealed lawsuit is that Section 82.00651(c) does not apply to the mere sending of a solicitation letter, it may still apply to the sending of misleading or unfair letters.
Letter lawyers send out thousands of letters per month. At $10,000 of potential liability per letter, that's a lot of risk. The letter lawyers had better be damn sure that nobody could possibly see anything even the least bit misleading or unfair in their letters, if they are going to keep sending them. How sure? Surer than I am about just about anything.
(Special bonus prize at the bottom of the box: ZIP file containing thirty-three pre-82.0651 Houston criminal-defense lawyer solicitation letters.)
Just spent the past twenty minutes going through all of the letters.
Wow. Just wow.
Some mysteries of the courthouse just got solved for me.
I think they’re from 2009. Some of these folks may not be sending letters now.
You really buried the lede here, Mark. These letters are amazing.
Embarassing letters. Several years ago I collected some from one of my clients – I think there were about 30 or so – but not the same names as you have. It opened my eyes to the grandiose claims that the lawyers were making and how a lay person could easily be misled. At the time, I tried to get HCCLA interested in taking action because of the embarassment to the profession but there were good reasons that, as an association, a decision was made not to become involved.
It is really sad that frightened people facing serious charges get these letters and think that they will receive a real defense for $300 or $500 or whatever the ridiculous quote is on these letters. It is no wonder when potential clients call or visit after receiving these letters that they think that a real, but reasonable, fee is outrageous.
Years ago I worked for a lawyer who more than once said that the people who hire the $100 lawyers will be back paying us ten times the fee to try to fix what gets F’d, and sadly he was right and unfortunately most times if F’d at the trial level, it cannot be fixed. The adage that you get what you pay for may not apply across the board (because I know some lawyers who do not do good jobs for their clients but bring in big fees) but it is certainly worth consideration.
I agree. I think it’s unfair and misleading, too.
Well, they’re the same people who buy cut-rate car insurance, I guess.
The sad part is that with many of those lawyers, they’d get about the same level of defense if they just went before the court pro se and plead guilty to the charged offense. I suspect that lawyers who charge that little in fees are the kind who will strong arm their clients into pleading.
The two dozen criminal defense lawyers with whom I have discussed the new barratry lawsuit statute have assured me that, before they send letters to arrested or summoned persons, they get an exemplar cleared by the State Bar, under the rules. There is no argument in favor of a right to send untruthful or misleading letters, and I have made no such argument. If you think that a lawyer currently is sending out untruthful or misleading letters, before the 31st day after arrest or later, then maybe you should report him or her to the Bar.
By its own terms, the early dismissal statute, Gov’t Code 82.0651(c), became effective
September 1. Although the statute calls for the Supreme Court to generate procedural rules, the statute does not delay the effective date until the Supreme Court acts. A trial court could decide to employ the statute before the Supreme Court generates any procedural rules. A lawyer contemplating bringing a lawsuit attacking a lawyer’s exercise of a constitutional right to send truthful and non-misleading solicitation letters should disclose to his client the risk of early dismissal and the award of attorney fees and costs, even if the lawyer believes that the lack of procedural rules is an impediment to the employment of the early dismissal statute. The lawyer could be wrong. Most lawyers would admit that they could be wrong.
Getting it cleared by the State Bar is no guarantee that it is not unfair or misleading. “The State Bar cleared it” is an example of The Grand Misdirect (see also Thedala Magee).
The State Bar doesn’t look very deeply into the substance of proposed advertising and, indeed, doesn’t very scrupulously enforce its own advertising rules. Complaining to the State Bar about a misleading letter is a fool’s errand, and there’s nothing in it for the person filing the complaint.
The early-dismissal statute is not 82.0651(c). 82.0651(c) is the liability-for-barratry statute. Maybe you meant Texas Government Code Section 22.004(g), which is the statute, effective 1 September, directing the Texas Supreme Court to make rules providing for early dismissal of cases “that have no basis in law or fact.”
I’m going to go out on a limb here and say that there is no way in Hell a trial court could legally sanction a
lawyerclient under the early-dismissal statute before the Supreme Court generates any procedural rules. Here’s the new sanctions statute, Civil Practice and Remedies Code 30.021:No rules adopted by the Texas Supreme Court under 22.004(g) means no costs and fees under 30.021. I’d be comfortable betting my E&O coverage on that.
But the more important point is that there’s almost always—Grand Misdirect notwithstanding—an argument that a solicitation is misleading or unfair and unprotected by the First Amendment. Anyone sending a letter—within 31 days or later—subjects himself to close scrutiny, and risks lawsuit if any one recipient knows about 82.0651(c) and thinks the letter is arguably misleading or unfair.
I’ve got no interest in the issue, other than not liking the image these letters create of our profession. I’m curious, though: do you have a dog in this hunt?
You are right that the early-dismissal statute is Govt Code Section 22.004(g), a statute that I brought to your attention in my first comment on this site. You speak of a sanction against a lawyer under that statute and under CPRC 30.021, but I think any sanction would be against the party, not the lawyer. You probably are right that judges will not use 22.004(g) until the Supreme Court generates procedural rules.
You appear to have reduced your argument to the point where you say merely that a lawyer can be sued under 82.0651 for a solicitation letter that is misleading. (I do not know where you got “unfair” as a standard.) If that is your position, I have no quarrel with it.
To answer your question, I do not have a client who has been sued under 82.0651(c), yet. I would be interested in defending such a client’s constitutional right to send solicitation letters, if the letters in question are truthful and not misleading
I’m not saying that judges won’t use 22.004(g) until the Supreme Court generates procedural rules; I’m just saying that, legally, they can’t. I’m not prepared to guess at how closely an elected judiciary will follow the law.
My argument, such as it is (I’d call it more a musing) has been that, notwithstanding opinions that part of the barratry statute is unconstitutional, 82.0651 suits are something that letter lawyers should be really worried about. First, because the opinions are not binding; and second, because the barratry statute is so vague that a fact issue will be very hard to avoid.
As I note in the post, the Texas barratry statute forbids sending a solicitation letter that “contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.” That’s where I get “unfair” as a standard.
I think your comments and blog post might paint too rosy a picture for the letter lawyers. I wouldn’t advise defendants to sue a lawyer for merely sending a letter, but I wouldn’t encourage lawyers to send letters.