Most attorneys are familiar with barratry and know that illegal solicitation is a third degree felony in Texas. However, Texas attorneys may not know that the legal profession’s resistance to barratry has a long history. References to barratry reach as far back as Greek and Roman times when the predecessors of modern-day attorneys were required to “demonstrate a ‘personal connection’ to a litigant before speaking on his behalf” and continue throughout the history of the Middle Ages in England. During the thirteenth century in England, Inns of Court trained affluent young men to practice law as a public service. Since these wealthy young men did not need an income, they practiced law for the betterment of their community and were prohibited from charging fees at all.
Today, most lawyers are not in a position to work for free. Thus, barratry is even more of a threat to the well-being and integrity of the legal profession due to the widespread networks of unethical lawyers and non-lawyers who work in concert to take clients away from honest, hard working lawyers and victimize clients by paying unnecessary expenses and fees for illegal solicitation.
Since the 1800s Texas lawmakers have worked to end illegal solicitation, and the law has undergone multiple updates and revisions. In 1876, the legislature passed its first statute criminalizing barratry. The 1876 statute made it unlawful for any person to willfully instigate or encourage litigation, in which that person had no interest, with the intent to harass the defendant or to bring a false suit with the intent to harass the defendant. In 1901, the statute was amended for the purpose of also making it illegal to stir up litigation by soliciting employment or advancing money to prospective clients to procure employment. In the early years of the statute, attorneys were the only professionals that were forbidden to solicit employment. However, the current statute criminalizes solicitation by a lawyer or a layman for the purpose of obtaining employment for economic gain.
Texas’s barratry statute was most recently updated under House Bill No. 148 in 2009 and went into effect on September 1 of the same year. Under the amended Texas Penal Code §38.12(d):
A person commits an offense if the person: is an attorney, chiropractor, physician, surgeon, or private investigator . . . and 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.
The revisions expanded the scope of the former Texas Penal Code Section 38.12(d). While the former law only applied to written solicitations, the new revisions state that solicitation in person and by telephone are also prohibited. While the old statute disallowed written communications to be sent to potential clients, the new statute was expanded to disallow any communications that are provided to the potential client, since not all forms of communication are done through paper means. Texas Penal Code §38.12(d)(2)(A), also applies to communications and solicitations that take place within thirty one days after the date on which the accident or disaster occurred.
It is a third degree felony in Texas when attorneys pay or offer to pay money to a prospective client to gain employment for economic benefit or to pay another person to do the same. A person also commits a third degree felony when he or she knowingly accepts employment within the scope of a person’s license for when the employment resulted from felonious solicitation.