Barratry: What It Is and What It Isn’t
by Houston lawyer Lance Christopher Kassab
What Is Barratry?
Barratry, commonly known as “ambulance chasing,” is the practice of illegally soliciting clients who are in need of the services of a lawyer. Texas lawyers are prohibited from initiating personal contact with potential clients who have not invited such contact. Lawyers who encourage their clients to file lawsuits, despite knowing there is no basis for litigation and thus only looking to profit through legal fees, are considered to be committing barratry as well.
What Happens to Lawyers Who Commit Barratry?
The Texas penal code considers barratry to be a misdemeanor offense on the first conviction, but a third-degree felony offense on subsequent convictions. Texas law also allows victims of barratry to collect a $10,000 penalty for each illegal phone or in-person solicitation by a lawyer or his/her representative. Victims are also entitled to actual damages arising from the illegal conduct as well as attorney’s fees. These civil remedies apply to contracts entered into on or after September 1, 2011.
My Lawyer Advertises on Television. Is That Barratry?
In a word: no. Paid advertising and legal marketing are both permissible under Texas law. The difference between advertising and barratry is that legal advertising requires potential clients to contact the attorney. In order for barratry to take place, the attorney (and/or a paid representative) must initiate contact with the client.
How Do I Know Whether I’m a Victim of Barratry?
Barratry is both a violation of the Texas Disciplinary Rules of Professional Conduct and a crime. There is also a civil statute that provides certain remedies for those who are victims of barratry.
Texas Penal Code § 38.12
A person commits an offense under Section 38.12 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.
This portion of the law 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).
Another section of the law addresses several general subcategories:
- 30-day prohibitions on solicitations relating to (i) personal injuries or deaths from accidents; (ii) arrests, (iii) divorces
- Soliciting someone who indicated a desire not to be solicited
- Soliciting by coercion, fraud, overreaching, or false, misleading, or deceptive statements
This category also includes a false, fraudulent, misleading, deceptive, or unfair statement or claim.
Remedies for Clients
The new law provides that a contract for legal services is voidable by the client if it is procured as a result of conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons.
However, Section 82.065(c) allows for quantum meruit recovery of fees and expenses paid or owed under the contract for an “innocent” lawyer when the following two requirements are met:
- The client does not prove the lawyer committed barratry or knew of the barratry “before undertaking the representation” and;
- The lawyer must have reported the conduct constituting barratry unless (a) someone else already has or (b) the lawyer reasonably believes reporting would “substantially prejudice” the client.
I’m a Victim of Barratry. What Should I Do Now?
Immediately make note of who contacted you and when. Be sure to save any business cards or contact information left by that person. Document the events regarding the illegal solicitation in as much detail as possible. Finally, contact an experienced attorney about a possible barratry claim.
Lance Christopher Kassab is a Houston-based plaintiff’s attorney who concentrates solely on legal malpractice and legal ethics cases. If you believe you have suffered damages as a result of your lawyer’s wrongdoing and are interested in the services of a legal malpractice attorney, please contact the Kassab Law Firm for a consultation.