Barratry

What is Barratry?

Texas has criminalized barratry since 1876. Citing legal dictionary definitions, courts in Texas have stated generally that barratry is the “vexatious incitement to litigation, especially by soliciting potential legal clients,” or “the offense of . . . exciting and stirring up quarrels and suits, either at law or otherwise.” Those vague descriptions say little and could apply to most forms of permissible lawyer advertising, solicitation, and marketing.

In Texas, at least, the better approach to ascertain the meaning of barratry is probably to examine the “functional definitions” in the Texas Penal Code.

In 2011 the Texas Legislature amended Tex. Gov’t Code § 82.065 and added § 82.0651. Those statutory changes strengthened civil remedies for clients and created a new civil remedy for nonclients who are subjected to solicitation that violates laws or disciplinary rules regarding barratry.

Barratry issues can arise in a variety of legal settings, including fee disputes, association of counsel, motions to disqualify, and lawyer discipline cases. Herring & Panzer counsels clients regarding barratry issues in each of these types of matters. The firm can provide advice to clients who have been a victim of barratry, as well as lawyers who may face their own allegations of barratry.

Criminal Prohibitions

Two principal Texas Penal Code sections address barratrous conduct: § 38.12 and § 38.18.

Section 38.12 of the Texas Penal Code is the key barratry prohibition. It is entitled “Barratry and the Solicitation of Professional Employment” and defines three categories of criminal offenses, each of which has multiple subcategories.

Chuck Herring has testified as an expert witness for the State of Texas in a rare, successful criminal prosecution of a lawyer for the crime of barratry.

Penal Code § 38.12: First Category

The first category of criminal offenses has subcategories that focus on (a) unauthorized claims; (b) solicitation; and (c) paying or transferring value to obtain employment. Specifically, the first prohibition provides that a person commits an offense if, with “intent to obtain economic benefit,” the person:

knowingly institutes a suit or claim that the person has not been authorized to pursue;
solicits employment, either in person or by telephone, for himself or for another;
pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;
pays or gives or offers to pay or give a person money or anything of value to solicit employment;
pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or
accepts or agrees to accept money or anything of value to solicit employment.

Penal Code § 38.12: Second Category

The second category of offenses focuses on financing the foregoing activities, or knowingly accepting employment based on such prohibited solicitation. Specifically, it creates criminal liability for a person who:

knowingly finances the commission of an offense under Subsection (a);
invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or
is a professional who knowingly accepts employment within the scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

Penal Code § 38.12: Exceptions to the First and Second Categories

An exception to § 38.12(a) or (b) exists if the “conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.”

Penal Code § 38.12: Third Category

The third category of criminal offenses addresses several general subcategories:

30-day prohibitions on solicitations relating to personal injuries or death from accidents, or solicitations to defendants in a lawsuit (including divorces);
Soliciting someone who has indicated a desire not to be solicited; and
Soliciting by coercion, fraud, overreaching, or false, misleading, or deceptive statements.

This third category also include solicitations or communications that involve (1) a false, fraudulent, misleading, deceptive, or unfair statement or claim, or (2) coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence.

Civil Remedies

Amended Texas Government Code § 82.065 and § 82.0651 created new civil remedies against lawyers and other professionals who engage in barratry. For attorney-client contracts, the amended statute applies only to those contracts entered into on or after September 1, 2011.

Remedies for Clients

Section 82.0651 provides that a contract for legal services is voidable by the client if it is “procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct. . . .”

Under the statute, even if a contract is declared void for barratry, an “innocent” lawyer may still obtain a quantum meruit recovery if the client does not prove the lawyer committed barratry or knew of the barratry “before undertaking the representation,” and the lawyer reported the barratrous misconduct to the disciplinary authorities unless (a) someone else already did or (b) the lawyer reasonably believed reporting would “substantially prejudice” the client.

In addition to providing that the contract is voidable by the client, the statute allows a client to recover the following from any person who has committed barratry:

fees and expenses paid to that person under the contract;
the balance of any fees and expenses paid to any other person under the contract, after deducting fees and expenses awarded on a quantum meruit basis;
actual damages;
a $10,000 penalty; and
reasonable and necessary attorney’s fees.

Remedies for Nonclients

Section 82.0651 further provides a civil remedy for “[a] person who was solicited by conduct violating Section 38.12(a) or (b), or Rule 7.03 . . . , but who did not enter into a contract as a result of that conduct.”