Beware barratry; it's against the law

March 22, 2012 at 4:05 p.m.
Updated March 21, 2012 at 10:22 p.m.

No matter what it's called, unscrupulous lawyers contacting injured persons seems to be a way of doing business for some lawyers. Regrettably, directly soliciting personal injury cases has become a practice of some law firms, both large and small.

Although often joked about, it is a serious problem. This practice by a very small number of lawyers reflects poorly on all lawyers.

Bill Edwards Sr., a lawyer in Corpus Christi who has represented people injured in accidents for many years, calls it a "cancer" on the legal profession. Lawyers interested in preserving the reputation of lawyers have pushed for tighter regulations for decades.

What is barratry? Barratry is the unlawful solicitation of legal employment, and it is a crime. The purpose of the law is to protect the public from being unduly influenced in choosing a lawyer by the way they are approached and to prevent financial inducements to hire a lawyer.

Barratry includes actions by a lawyer to solicit employment in person or by telephone and actions by a non-lawyer to solicit employment for a lawyer with the intent of getting an economic benefit. It includes paying prospective client money or anything of value to get their business or agreeing to accept money to influence someone to employ a lawyer.

If you are contacted by someone you do not know and are asked to hire a particular lawyer, there is a very good chance that this person is hoping to be paid to get your business. People who engage in this conduct are typically referred to as case runners. Since 2009, barratry has been classified as a third degree felony.

A lawyer who commits barratry can, and often should, lose their law license. A client who was unethically solicited by his or her lawyer may recover all fees and all expenses paid to the lawyer. The client also can recover from the lawyer damages and attorney's fees incurred in suing the lawyer.

Last year, the Texas Legislature gave the public another tool to use to prevent solicitation, a $10,000 fine paid by the lawyer to the person solicited. The new law was effective Sept. 1, 2011. The law provides that anyone who is illegally solicited by a lawyer, but who did not sign a contract with the lawyer, may sue the lawyer who committed the solicitation. They may recover the $10,000 penalty, damages and attorney's fees for each and every unethical solicitation.

There is absolutely nothing wrong in encouraging a friend or family member to get a lawyer. The very best way to find a lawyer is through family and friends.

Public access to the courthouse is essential to our democracy. One of our founding fathers, Thomas Jefferson, said "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principals of its constitution."

The system is worthy of protection. The public must have access to legal representation.

Part of protecting the system includes protecting its integrity. The oath that every Texas lawyer takes before receiving a license requires him or her to "honestly demean himself in the practice of law."

When the lawyers who are privileged to be a part of the system violate the law and ethical standards of conduct, they do harm to that system.

When non-lawyers and lawyers alike report abuses of the system, they are a part of protecting the system.

Will Sciba and Jim Cole are shareholders in the Victoria law firm Cole, Cole & Easley P.C.



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