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is no basis in law, because the statute clearly is unconstitutional, given prior rulings, even though those rulings are not binding precedent for Texas trial courts.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.)