Nov 7, 2009
As reported in the Houston Chronicle, Houston criminal defense lawyer Lloyd Oliver has been accused of barratry (i.e. generally, the “vexatious incitement to litigation, esp. by soliciting potential legal clients.” Black’s 8th 2004). According to the Chronicle:
Lloyd Oliver said he befriended a homeless man named Perry Mason, who sells individual cigarettes and bottles of water on the sidewalk outside of the jail at 21 San Jacinto. Oliver said he bought Mason lunch, a pair of shoes and gave him $20 when they first met, a few years ago. Oliver said he also gave him a stack of his business cards and said, “Send me a client sometime.” Since then, Oliver said, Mason has been handing them out and referring people to the lawyer
“Maybe that’s barratry. I’m not sure. I don’t think it is,” Oliver said. “But if you strictly interpret the barratry statute, we’re all guilty of some form of barratry. If I buy you a cup of coffee or give you a pen with my name on it and you refer a client to me, that would be barratry.”
The statute in all its glory appears below. After conducting my own polling of law students and recent grads, I suspect the great majority have no idea what barratry is, much less under what circumstances it could lead to criminal charges or disbarment. Caveat lawyer.
(a) A person commits an offense if, with intent to obtain an economic benefit the person:
(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself or for another;
(3) 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;
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
(5) 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
(6) accepts or agrees to accept money or anything of value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an offense under Subsection (a);
(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or
(3) 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).
(c) It is an exception to prosecution under Subsection (a) or (b) that the person’s conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.
(d) A person commits an offense if the person:
(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and
(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person’s employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:
(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;
(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;
(C) concerns an arrest of or issuance of a summons to the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the arrest or issuance of the summons occurred;
(D) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;
(E) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;
(F) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or
(G) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
(e) For purposes of Subsection (d)(2)(E), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person’s relative.
(f) An offense under Subsection (a) or (b) is a felony of the third degree.
(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.
(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).
(i) Final conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.
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