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.