Criminal

Barratry and Client Solicitation

So I want to take few minutes to talk about barratry, Barratry is in person or by phone solicitation of the client. The advertising rules have really confused lawyers about what barratry is but it’s very clear under the Penal code, you cannot go up to a client who are a person who looks lost at court house or lost at the jail and says “hey I am lawyer can I help you”. If you communicate by that person, in person or by phone to someone concerning the professional employment when neither that person or someone acting on their behalf has requested it, that is barratry. This does not include communication that’s been initiated by family, so mom calls “will you go see if my son is out of jail” that is not barratry to go see the son though the son hasn’t requested it.

If you see your prior client has a warrant out for their arrest and you want to call him and let him know, that’s not barratry but if somebody you have no prior relationship with and in person or by phone you solicit them for employment. The legislature is so upset with barratry and so concerned about it that in 2009 they actually amended this section to try to put some teeth into it including phone calls.

In Bailey V. Morales of 5th Circuit held that this was unconstitutional as to chiropractors who were soliciting but the State V. Jiminez said it was not unconstitutional when chiropractors are soliciting for attorneys. In our fields just switch out chiropractor for bail [inaudible].
That’s what happens a lot, that is in fact is barratry and they can be prosecuted and the lawyer can be prosecuted and if he saw that it is compulsory discipline or in fact you can lose your bar license. Now why is this all so confusing is because the Moore v. Morales case held that the other parts of it can be unconstitutional violation of lawyer’s free speech rights.

Lawyers have commercial free speech right to advertise, to mail out mass solicitations saying you have a case I want to represent you to advertise on TV.

The 5th circuit reinstated the prohibition against contacting accident victims within 30 days based on the SC decision that came out earlier the same year but that does not apply to criminal cases, so they are still so mad about it, then last session they created a totally new cause of action. Our very conservative legislature that do not like civil lawyers, do not like law suits, have law suit and tort reform bill boards everywhere, created a new cause of actions to sue lawyers for barratry.

They want us to sue each other, they want us to go after each other for barratry and it’s in the government code, the client can void the contract based on barratry within 4 years and another attorney can sue for the attorney’s fees and as long as they have reported it to state bar of course but they really wanting is personal injury lawyers, right, the big fees. So that is what they are really wanting but they also added that there can treble damages. This was all effective Sept. 1st 2011, we are just beginning to see these cases where lawyers are going to sue each other over the way that the person got the case.

So what happens when the state bar gets a notice of misconduct and they have decided to go forward, they didn’t dismiss it. They send the lawyer a written rule violation, Texas being the unique place it is. The lawyer in State of Texas, the only state in the entire US can elect the district court and a jury trial on their grievance but understand that only a private reprimand is only available through the local grievance committee.

So that’s the reason that almost all the grievance go to the local grievance committee because if the lawyer elects for district court, they elect for that jury trial and they are found to have engaged in unethical conduct, they cannot get a private reprimand.
So what used to drive me crazy is a biggest “no, no” is not responding to the grievance. You get some grievance that kind of on its face needs to go forward, we need to do more investigation and then the lawyer doesn’t respond. We would have dismissed it because it wasn’t a good grievance but he has got a second grievance now 8.04 says that it is Misconduct to fail to timely furnish the bar or district grievance committee, any information has require by the rules of evidence, so respond to the grievance.

The grievance referral program. It is a new program set up by the state bar for minor misconduct, no allegations of theft, it can’t have substantially harm the public and the lawyer has to say “I want to do better, I want to go CLE, I want to go law office Management, I want to learn how to run my office better” and what is the benefit if the lawyer will go through the grievance referral process, they will get their grievance dismissed.

So it is possible to even recognize that you may have made a mistake, we have lots of lawyers who end up going through divorces or death in their family and for some reason they just neglected a case and they come in, they throw themselves on their sword and say “I am so sorry what can I do to do better” they can go through this grievance referral program and have their grievance dismissed.

So how can you avoid all of this? As you know you just don’t even want to be in the grievance system right. Have a written contract, please if you have heard nothing else I say have a written contract. Communicate with your client someway, email, phone, just keep a record, return the file if you are terminated. Keep your address with current with SC, that is now a rule. It wasn’t a rule when I first started that you have to have your address current, we had lawyers that liked to move around whenever they got too many grievances, they just move to another jurisdiction you know. Come try to skirt the grievance system.

So the SC says “no, you got to keep your address current with the state bar”. Don’t represent co-defendants that will always get you a grievance. Have a trust account for all these that are advanced fees and answer the grievance.

We are required to have this little notice in our office that tells clients how to file a grievance and so I try to tell people that about some of the good things that state bar actually does and the client attorney assistance program is one of those. They are setup before any grievance is filed to actually try to intervene on behalf of the lawyer with the client to find out what’s the problem is. Had it not return the phone calls, had it not returned the file. Do they really just need to know what’s going on their case.

So if a lawyer gets a call you have a friend that says something called CAAP is calling me from the state bar return the phone call, just pick up the phone and return the phone call. It may save a grievance from being filed. There is new ethics hotline where there is a lot more people there working that can give ethical opinions to lawyers. There is law office management and there is Texas lawyer assistance program.
I am very big fan of the Texas lawyer’s assistance program for one and only one reason. In the professional world the Denis has always had the highest suicide rate. That didn’t get in to the medical school right? We have surpassed the Denis. More lawyers are committing suicide every day because we have a difficult job to do.

Francisco Hernandez

Author Francisco Hernandez

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