BARRATRY? What is it?
When someone (NOT necessarily a lawyer)—UNINVITED and UNKNOWN to you—visits your home, your business, your hospital room, or even the accident site to solicit your legal or medical representation, that’s called BARRATRY. All states frown on the practice.
TV and Billboard advertising ought to fit the above examples of barratry, but the US Supreme Court declared that free speech rights were infringed by the absolute prohibition of advertising soliciting legal business. That means advertising can have some limitations, such as too early written solicitation after an accident, and can be included as barratry.
Texas courts define barratry as the IMPROPER “solicitation of employment to prosecute or defend a claim with intent to obtain a personal benefit.”
Yes, defense lawyers can be guilty of barratry if they hustle business from a defendant who has been sued (or about to be sued) regarding a specific publicized matter. And so can medical professionals be guilty of barratry.
In Texas, the improper solicitation of clients is prohibited by the Texas Penal Code in Section 38.12 and 38.18. That means a convicted person (not necessarily a lawyer) can be imprisoned as a felon.
And, the Texas Disciplinary Rules of Professional Conduct (in Sections 7.01, 7.02 and 7.03) prohibits lawyers from improper solicitation of clients. That means the loss of a law license.
As you can see, lawyers are covered by both the Penal Code and the Disciplinary Rules.
Naturally, in this limited space, not all the ins and outs of barratry can be covered. But, you get the idea.
A new Texas statute gives new rights and remedies to both the improperly solicited clients as well as to improperly solicited non-clients—-people who didn’t sign up.
For any attorney-client contract made after August 31, 2011, if procured “as a result of conduct violating” either the Penal Code or the Disciplinary Rules as to barratry by an attorney or by another person, the contract is voidable at the client’s option. However, if the accused lawyer is innocent of the barratry, then the lawyer may be entitled in some instances to payment for meritorious services and expenses incurred. One court has already ruled that the client has waited too late to exercise the voidable option right when the lawyer has substantially completed the legal services.
Besides the client’s voidable option, the client may also recover from the person committing barratry any improper payments made, actual damages, and reasonable attorneys’ fees, according to the new statute.
For any solicited person (after August 31, 21011) not entering such contract in violation of either the Penal Code or the Disciplinary Rules, the new statute allows recovery of the solicited person’s actual damages, a penalty of $10,000, and reasonable attorney’s fees, and any other remedy. Now, people improperly hustled, if they don’t sign up, have a chance to pick up any easy ten grand.
In San Antonio, several lawsuits have been filed with allegations of barratry.
