lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Houston Lawyer Charged with Barratry for Having Homeless Man Hand Out Business Cards

need-a-lawyer

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.

Tex. Penal Code § 38.12. Barratry and Solicitation of Professional Employment

(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.

TED Talks: Misha Glenny investigates global crime networks

Organized crime has grown by leaps and bounds in the past decade, to what Glenny now estimates as 15% of the world’s GDP. Glenny has written McMafia: A Journey Through the Global Criminal Underworld, attributing the remarkable its growth to the collapse of Communism, the rise of globalism and the deregulation of international finance markets.

Read the rest of this entry »

When Not to Blog (Prosecutors Edition)

The legal profession has more than its share of land mines for would-be bloggers. Houston Criminal Lawyer and Fearless Blogger Mark Bennett points out one of the many differences between himself and prosecutors – he can speak his mind with relative impunity; prosecutors are officers and representatives of the State. Even when they speak for themselves they implicate our collective coercive power over the person. So when someone pulls the veil back on the sausage factory, it’s well, unseemly. Consider a excerpt from “the Sassy Court”:

Today, [Chief Man] was laughing at me because I was livid that he wanted to give my pervert a deferred. I told him I didn’t care what he did as long as it counted toward the guy registering as a sex offender.

At one point he was sitting with his head on the desk. Then he tried to explain to me that they give deferreds to sex offenders all the time in felony. I don’t care what they do in felony!!! I want my guy to have to register as a sex offender!

It was not quite a surprise to find that the blog had gone dark today. In any other context – covering politics, business – those kinds of comments would be perfectly acceptable and purely entertaining. One of the issues of working for the government is that it’s not always easy to tell where ones own dominion ends and where the government’s begins. For a public employee I’m not sure a public, even presumptively anonymous blog, of the kind those of us in private practice take for granted, can ever be appropriate. There are consequences to blogging. Not all of them are good.

60 Minutes on Eyewitness Testimony and the Case of Ronald Cotton

Leslie Stall had a great piece on Ronald Cotton case in 60 Minutes, following the path of his wrongful conviction and the steps it took for a woman to identify the wrong man as her rapist. Elizabeth Loftus, who is well known for her research on memory, particularly as it applies to criminal law, appears in the second half. The full episode is embedded below.

60 Minutes, Part 1

Watch CBS Videos Online

Part II

Watch CBS Videos Online Read the rest of this entry »

Civil Suit Challenging Alleged Abuses in Asset Forfeiture

Nachodoches attorney David Guillory is challenging the enforcement of Texas asset seizure laws in Tenaha and Shelby County in east Texas, alleging that his clients were stopped and coerced into waiving property rights in exchange for a promise to be released and not be criminally charged.

Linda Dorman, an Akron, Ohio, great-grandmother had $4,000 in cash taken from her by local authorities when she was stopped while driving through town after visiting Houston in April 2007. Court records make no mention that anything illegal was found in her van. She’s still hoping for the return of what she calls “her life savings.”

Many small town police forces have come to depend on the civil asset forfeiture laws for operational expenses. The incentive to cross the line from preventing criminals from enjoying ill-gotten gains to an easy way to earn money for the department is an all too apparent conflict of interest.

Guillory’s sleuthing in the district clerk’s office raised his suspicions. ” We found out what the names of those people were and then we looked in the criminal docket there in Shelby County for the past 24 months to see if any of those people were ever charged with a crime or prosecuted of a crime. The answer is we didn’t find anyone. That’s what really caught our eye. That’s what made it suspicious and that’s what made it seem like a situation where it’s just a money shakedown operation beside the road with no intent of enforcing crime or criminal laws or anything like that. “

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