Does Daniel Barrera Want To Ruin Defendants’ Lives?

If he does, the State Bar doesn’t mind.

First, a story: the Texas Legislature amended section 38.12 of the Texas Penal Code, entitled, “Barratry and Solicitation of Professional Employment,” in September. The former statute had been held unconstitutional by Judge David Hittner in Moore v. Morales, John Cornyn had opined formally as Texas AG that the prohibition on direct mail solicitations was unconstitutional, and the new statute did not change in any way that would correct the unconstitutionality. In fact, the change to the statute was not material—”sends” and “addresses” became “provides” and “communication” became “communication or solicitation.”

Houston “letter lawyers”—those criminal-defense lawyers who depend for their livelihood on reaching out to the ignorant in their homes with scary language and vague promises—freaked out. They ran in circles, screamed and shouted. The point? They don’t seem to have much understanding of how the law works. These letter lawyers are not, as a rule, the sharpest tools in the criminal defense shed.

These letter lawyers will be happy to know that this solicitation postcard from Houston criminal-defense lawyer Daniel Jose Barrera (SBOT, Avvo) passes muster with the State Bar. Yes, even though it tells anyone who sees it that the addressee is charged with a crime. Barrera’s argument, which the State Bar apparently bought: he’s not saying what kind of criminal charges the addressee faces.

My opinion: Nonsense.

“Don’t let a criminal charge ruin your life,” writes Daniel Barrera with apparent earnestness. What Barrera fails to appreciate—or doesn’t care about—is that the association of a criminal accusation with a person’s name may ruin that person’s life—ask Richard Jewell, Steven Hatfill, Wen Ho Lee, and Brandon Mayfield. This is something that all criminal-defense lawyers should be ever mindful of.

When Daniel Barrera sends out his postcards to people accused of crimes, he’s telling anyone who happens to see those postcards that the addressees are charged with crimes. A criminal-defense lawyer should do the exact opposite—should strive to make the accusations against his clients disappear.

The end result toward which we work is a dismissal or acquittal followed by an expunction, so that government agencies are ordered to delete records of the arrest. We don’t always wind up there in the end, but we aspire for as long as we can, and we work from the beginning to keep our clients’ names as much out of the papers and off the internet as possible. The satisfaction of an expunction is lessened by unexpungeable records on the internet or in the media, or in the minds of the postman, the relatives, the landlord, and others who happen to have seen Daniel Barrera’s postcards.

99% of the time, maybe nobody cares. But if you send out 2,000 postcards a week, 20 of them are going to fall into the wrong hands, and 20 defendants’ reputations are going to be harmed.

In a nutshell, the State Bar is incompetent in matters of criminal law. Relying on the State Bar for ethics opinions in criminal matters is like asking Sherwin-Williams how you should paint the ceiling of Pope Sixtus’s chapel. You can pretty well count on them getting the ethics wrong all of the time and the law wrong, as in this case, half the time.

If the State Bar isn’t going to do anything about lawyers who are willing to damage the reputations of their potential clients in exchange for a quick buck, then the criminal-defense lawyers—those who will wind up representing the clients that Barrera sends his misbegotten postcards to—are going to have to. There is more than one way to skin this particular cat—see Rule 6.

So here’s the deal: I’m going to ask new clients to bring me copies of the letters they’ve received from letter lawyers, and ask other lawyers to bring me copies of the worst letters that their clients receive. And I’ll be publishing the egregious examples with my usual commentary. Maybe I’ll publish the ones that are a credit to our profession too.

(Speaking of credits to the profession, I saw a law firm’s billboard today on the road to Galveston: “Winning isn’t everything . . . it’s the only thing.” To hell with honesty, truth, and ethics, eh?)

Being a lawyer is not just a business. The internet, which has been a tool for the deprofessionalization of the law, can reprofessionalize it too by calling attention to the ethical lapses—even if they are not violations of the DRs—of our more careless colleagues. If you’re a lawyer who sends out letters to solicit business and your letters aren’t something that you’d be proud to have your peers discussing publicly, decide now whether you want to have them discussed nationwide, and even worldwide.

Especially if you’re sending out letters that, on the outside, identify their recipients as reluctant participants in the criminal justice system, fix those letters now—if not for the potential clients’ good, then for your own.

16 Comments

  1. A friend asked me last year if he should mail a newsletter to his clients (he is a criminal defense lawyer) in order to keep his practice top-of-mind and keep his clients abreast of law changes, etc. (The newsletter idea was that of a friend of his, who creates link farms for SEO purposes for a living … barf.) I told him this was a terrible idea…

    “Because what’s the recipient supposed to do? Leave this newsletter lying around the coffee table at home?!”

    It’s like the time that Prozac accidentally cc’ed some patients reminding them to pick up their renewal …

    Your post here more eloquently states that which I expressed mostly through dumbfounded “I Can’t Believe It’s Not Obvious” grunts. Thank you.

  2. In your mind, is there a distinction between a mailer that is in an envelope and a postcard? It seems to me that a mailer that is identified only by the recipient’s name (and perhaps the lawyer’s return address) eliminates most of these concerns.

    1. Absolutely. If the outside of the mailer (which also has to say “ADVERTISEMENT”) does not give any hint of the nature of the problem, the major problem with Barrera’s postcard is eliminated.

  3. You fail to realized something Dumbass……You can’t hurt me or my reputation. You may try but I assure you that you will fail. But, You will see me soon when I am in Houston to Do things that you will never forget. You will see me soon ass wipe.

  4. He didn’t say that I did. Why are you editing peoples names and url’s? Why do you make things up? You will see very soon the measure of my tolerance. I will show you what it is like to feel my pain.

    [Wayne finally figured out how to use Tor, and sent this one through a server in Denmark under someone else’s name and URL.]

  5. You need to stop emailing mac. Don’t contact him anymore. He has given us the ball. Don’t you realize whom you are playing with? All he ever wanted from you was for you to take down your filth and lies. Isn’t it somewhat to late for that? I say go on with whatever plan you have and be warned fool….we don’t ever lose. But you my friend will and anyone that anchors on to your losing cause.

    1. Again, I’ve fixed Wayne’s comment to correct the false email and URL he left.

      I had emailed him to suggest that I might, in the Christmas spirit, lay off; this is his response.

      So now everybody in Hanford California, even those who would never think to Google him, is going to know that Wayne is a sick coward who rapes unconscious soldiers.

  6. We have face the same dilemma in California. There are some lawyers that send out “jail mail” with outrageous claims of success and scare tactics, and others who follow the rules of professional responsibility. Still, there are other lawyers who won’t admit to sending out jail mail because of they would like others to believe all of their clients are earned by a stellar track record.

  7. Hi Mark,

    I completely agree with you – closed envelopes (without mention of the senders as criminal defense attorneys and without anything showing through the envelope) are fine; postcards are not.

    In a former life, I was a debt collector (third-party; mainly credit cards, both consumer and business). As you probably know, we’re governed by the Federal Fair Debt Collection Practices Act (FDCPA) and by sometimes stricter state and local laws. The FDCPA makes crystal clear that postcards are a major no-no. (And the courts have – rightly IMHO – interpreted that to include envelopes through which people can read the contents.)

    I respectfully disagree with Ms. Patrick: IMHO, as long as something stays confidential until it reaches the recipient, there is no confidentiality issue. If some recipients choose to put their newsletters on their coffee tables rather than someplace private such as a desk drawer, a nightstand drawer or wherever, that’s their own problem.

    (FWIW, I put out my own email newsletter on how people with Asperger Syndrome [AS] and other conditions on the autism spectrum can get along better with others – and vice versa. It should go without saying that it is 100% opt-in. My recipients understand that I would never give out their contact information without their permission – and they also understand that this newsletter is coming by email, and they may choose to read it in settings where others can look over their shoulders. A large majority of my readers either are, or are close to, Aspies [as we call ourselves], and may not want those facts to be publicized. We see nothing wrong with this newsletter.)

    Happy New Year (and stay warm)!

    Jeff Deutsch

  8. Hello everyone, I prefer to not give my real name so I will stick with jane. I just want to say that this lawyer Daniel Barrera is a fraud and he will not help his defendants. He will just take your money and will not care what ever happens to your family memeber. We hired him to defend my relative and he told us that he could do something about his case, then whent behind our back and told my relative that his case was lost. He asked us for $12k and of course we gave it to him being in the situation we were my family didnt know what else to do and thought he was a good lawyer based on all the bs he would tell us, we just wanted my relative out of jail. When he would go to court he arrived all sweaty as if he was hung over from previous night had no notes ready what so ever and would stutter when judge would ask him things. My relative was so mad because he knew more than Barrera knew. Long story short Barrera screw us over took our money a week later he whent on vacation to cancun or something like that he told one of my fam members he would not be available but would be working on my relatives case while in vacation yeah right bs! Dont trust this guy he just talks the talk but you will never see any action from him, I don’t know how he could have a license or live with him self knowing he literally stole money from clients based on lies. I hope he rots in hell and hopefully one day someone will screw him over like he did with us, a hard working family that bust their butts working long hours in the burning hot sun. We would have preferred to hear the truth that the case had no future rather than giving him 12 grand for no reason. After the last court I asked him what happened coulnt you have done more or spome up more!!??? And he was just like well there was nothing to do, effin pig!!! Im disgusted with people like him.

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