Texas Civil Liability for Barratry

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.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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