Posted on
August 6, 2011 in
From Texas Senate Bill 1761F, adding Section 82.0651 to the Texas Government Code:
(c) A person who was solicited by conduct violating the laws of this state or 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.
(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.
The Texas Disciplinary Rules only mention barratry in section 8.04(a)(9): a lawyer shall not “engage in conduct that constitutes barratry as defined by the law of this state.” Texas’s barratry statute is Section 38.12 of the Texas Penal Code. Among other things,
(d) A person commits an offense if the person:…is an attorney…licensed to practice in this state…;…with the intent to obtain professional employment for himself or for another, sends or knowingly permits to be sent to an individual who has not sought the person’s employment, legal representation, advice, or care a written communication that:…concerns an arrest of or issuance of a summons to the person to whom the communication is addressed or a relative of that person and that was mailed before the 31st day after the date on which the arrest or issuance of the summons occurred….
Judge David Hittner in Moore v. Morales held that portion of the statute unconstitutional and enjoined its criminal enforcement. The Fourth Circuit in Ficker v. Curran held a similar statute unconstitutional. Texas Attorney General John Cornyn opined that the statute is unconstitutional because it “neither directly or materially advances a substantial state interest nor is narrowly drawn as provided under Central Hudson.”
In Houston, many criminal-defense lawyers make their livings by sending solicitation letters to recent arrestees. If Section 38.12 were constitutional, they could be prosecuted for barratry. Because of Moore v. Morales they have not been. But because they have not been prosecuted, Texas’s courts of appeals have not ruled on the constitutionality of the penal statute, and there is no binding authority to prevent private citizens suing under Section 82.0651.
Solicitation letters to the accused are often harmful to their recipients and frequently deceptive; they drag the whole criminal-defense bar down into the gutter, and the State Bar is okay with that.
My clients receive thirty or more of these letters before finding their way to me. Any one of them could file a lawsuit against thirty letter lawyers, settle for a thousand bucks apiece—less than a tenth of the potential liability—and in many cases pay my entire fee, sometimes with a little something left over for coffee.
A typical letter lawyer sends out two thousand or more letters each week. After 1 September, when Section 82.0651 becomes law, each of those letters will be a potential lawsuit that must be responded to. And $10,000 per letter, plus attorney’s fees for the winning plaintiff, with nothing to lose but a filing fee, will provide powerful motivation to sue.
Now, if we could just call crazy TV ads barratry…
When I was starting out — and occasionally even today — I would have colleagues who tried to convince me that “jail mail” was a good way to get started when you haven’t been around long enough to build a good rep yet.
I always resisted this because, frankly, it smells like ambulance-chasing.
Admittedly, getting started as a new attorney was tough. Heading into my fifth year, there are still months when I wonder how long it will be before I feel like my practice is going to remain viable.
I still can’t get over the idea that jail mail smells. As much of a libertarian as I am, I wish more bars would regulate this sort of thing. The problem is that too many attorneys, like some of my well-meaning colleagues, see nothing wrong with the practice. They may agree that it’s distasteful, but the fact they would suggest it for me shows they don’t see it as inherently wrong.
The part of Penal Code Section 38.12 that criminalizes sending solicitation letters is unconstitutional in so far as it bans letters that are not misleading or deceptive. That has been clear since the 1988 US Supreme Court opinion in Shapero v. Kentucky State Bar Assn. A lawyer has a constitutional right to send such letters. I doubt that a statute, such as the one in Govt Code Section 82.0651, which creates a private cause of action against a lawyer for exercising his constitutional rights, would pass muster.
As for the idea that a plaintiff who files suit under 82.0651 would have nothing to lose but a filing fee, one might look at HB 274, codified in Govt Code Section 22.004. The Supreme Court of Texas will be adopting rules allowing immediate dismissal of frivolous cases on motion by the defendant, which should include cases filed against a lawyer for exercising his consitutional right to send letters to potential clients, which, as I point out above, has been recognized since 1988. The frivolous plaintiff will have to pay costs and the defendant’s attorney fees associated with the dismissal motion.
Shapero doesn’t say that lawyers have an unfettered right to send letters to potential clients; rather, Shapero says that the letters can only be restricted in the service of a substantial governmental interest.
Does 38.12(d)(2)(C) advance a substantial governmental interest? Your opinion and mine don’t matter. Judge Hittner said that it does not, but he is neither a Texas Court of Appeals nor the Supreme Court.
HB 274 requires the Texas Supreme Court to “adopt rules to provide for the dismissal of certain causes of action and defenses that the supreme court determines should be disposed of as a matter of law on motion and without evidence.” It’ll be interesting to see what causes of action and defenses the Texas Supreme Court should be disposed of as a matter of law on motion and without evidence.
It’ll also be interesting to see when the Texas Supreme Court adopts these new rules. In the next twenty-five days? I doubt it (I don’t follow the Texas Supreme Court closely, but as far as I can tell there are not yet rules proposed in response to HB 274, which, like 82.0651, becomes law on 1 September 2011).
Most likely, the appeals of the first 82.0651 suits will precede any rules providing for expedited dismissal of frivolous claims.
Even if they do not, as long as there is a good-faith basis in existing law or the extension of current law for a claim, the claim is not legally frivolous. Lawyers don’t have to successfully guess at what the courts of appeals might do with a claim.
I hope that the letter lawyers will base their actions on your prognosis, and not mine, which is that, absent binding authority holding 38.12(d)(2)(C) unconstitutional, a lawsuit under 82.0651 based on a letter written sent within 30 days of a person’s arrest is not frivolous.
You say “Shapero doesn’t say that lawyers have an unfettered right to send letters to potential clients.” Of course, I did not argue that Shapero held that. Shapero answered the following question in the negative: “This case presents the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.” In light of that, I suggest that any suits under 82.0651, based on letters that are truthful and nondeceptive, will be unsuccessful as restrictive of the constitutionally protected right of free speech.
You are right that, before the Texas Supreme Court issues new procedural rules, there might be a window of opportunity to bring such suits, without getting tagged with an early dismissal and attendant costs and attorney fees. In the meantime, however, I do not see such civil suits surviving summary judgment, in light of Shapero.
I think “categorically” is an important word here. 38.12(d)(2)(C) isn’t a categorical prohibition.
I think the ban embodied in 38.12(d)(2)(C) is “categorical” in more than one sense. First it pertains to a certain category of client solicitation letters. More to the point, it is categorical in the same sense that the Shapero court used the word, i.e. that it bans certain client solicitation letters without regard to whether they are truthful and nondeceptive and without a substantial government interest, etc.
On appeal, the Fifth Circuit reversed Judge Hittner’s decision in Moore v. Morales as it related to 38.12(d)(2)(A). If 38.12(d)(2)(C) were a “categorical” ban, then (2)(A) would be as well, and would be unconstitutional.
But the Fifth Circuit found (2)(A) unconstitutional. Why? Because “categorical” doesn’t mean “pertaining to a certain category” nor “without a substantial governmental interest” but rather “unconditional” or “without qualification.” The qualification here, in both (2)(A) and (2)(C) is “before the 31st day.”
(It is possible that the Fifth Circuit got it wrong on (2)(A), just as it is possible that Judge Hittner got it wrong on (2)(C).)
You think that (2)(C) does not advance a substantial governmental interest; you may be right. I might even agree with you. Courts might ultimately agree and, ultimately, hold (2)(C) unconstitutional. But no court whose authority is binding on Texas trial courts has done so yet.
Despite my misgivings, if someone will supply me with names of attorneys who, after Sept 1, send out solicitation letters to arrested persons,contrary to 38.12(d)(2)(C), as well as a list of persons who received them, I might consider testing 82.0651 before the Tex S Ct promulgates rules effectuating Govt Code Section 22.004. Anyone interested/able to help with that?
Did you find a Plaintiff?
We’ve got some sleazy letter writers here also. i.e. coupons, “I’m the greatest”, I branded myself as….” and scare tactics. Maybe our local bar association will now agree to send a professional letter to arrested people that will give them some important information without pushing them toward any lawyer or referring to ANY Bar Website either. Force these lawyers to see what good work in the courtroom will do for their reputation and business.
As I understand it, barritry is a lawyer encouraging litigation in order to drum up business.
The state has already commenced litigation against the accused. The lawyers are just offering their services by letter.
I send out letters. I have received letters from attorneys after receiving traffic tickets. I did not find it distasteful. I was free to ignore any or all of the letters. I have signed many clients who are happy with my services that I could not have otherwise reached. The mechanism for protecting individuals from unscrupulous attorneys is contained within the disciplinary rules. If you don’t like letters, don’t send letters.
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