Reformers, trial attorneys come together to fight barratry

By Marilyn Tennissen | Jun 10, 2010


Tort reformers and trial attorneys usually don't agree on much, but both groups recently joined forces to urge Texas lawmakers to help put an end to the practice of "ambulance chasing" in the state.

The Texas House Committee on Judiciary and Civil Jurisprudence met recently to hear invited testimony regarding the current barratry laws in Texas and make recommendations as to their adequacy in protecting citizens from unscrupulous behavior.

Since 1989, the Texas Legislature has made lawyer solicitation of legal representation, or barratry, a felony offense. It is a crime for a lawyer, law firm or a representative of a lawyer or law firm to contact, in person or by phone, an accident victim for purposes of legal representation if the victim has not first requested the call or personal visit.

The law is intended to protect citizens who may become involved in an accident from in-person solicitations or written solicitations within a 30-day period following an accident.

The Commission for Lawyer Discipline, a standing committee of the State Bar of Texas which oversees the attorney grievance system, acts as the client in disciplinary litigation against lawyers accused of misconduct.

At the May 26 hearing, Bill Edwards, a plaintiffs' attorney from Corpus Christi, said those people who engage in barratry should be punished.

"This kind of activity is corrupting society," Edwards said. "The victims in each case are victimized twice because the plaintiffs are responsible for showing the burden of proof to the judicial branch of government."

Jim Popp, managing partner of Popp, Gray & Hutcheson, said there should be an appraisal of the attorney review board. Popp said the district courts need to take action, and mentioned that in 2007 there were more than 3,000 lawsuits filed by a single person in Harris County.

"Good lawyers are not getting the good cases; the crooks are," said Hugh Rice Kelly, general counsel of Texans for Lawsuit Reform.

He believes the Texas Supreme Court should oversee actions for lawyers, and suggested the implementation of a new office under the Attorney General that goes after malpractice lawyers.

Lee Parsley, president of the Texas Civil Justice League said any barrater should be subject to forfeiture of fees.

He said criminal prosecution for barratry does not happen often, and he contends that the State Bar of Texas has been mostly ineffective in pursuing barratry violations.

The current system for addressing barratry does not seem to be working in some parts of the state, particularly South Texas, Parsley said.

Mark Kincaid, vice president of the Texas Trial Lawyers Association told the Committee he thinks the current language of the statute is not broad enough. Kincaid feels all lawyers need to be accountable.

"We all want to kill the rats; we just don't want to burn down the house in the process," he said.

Attorney Steve Mostyn said the actions of these "swindlers" are reprehensible. Pressure needs to be applied to district attorneys to prosecute violators, Mostyn said.

If the current laws were enforced, there may not be a need to change them.

"The cure could be worse than the symptom. I seriously think if we put a couple of these boys in jail for five or 10 years it would slow down," Mostyn said.

Committee Chairman Rep. Todd Hunter R-Corpus Christi, said a working group would soon be formed to explore remedies.

In 2009, both TTLA and TLR supported bills that would have created a civil cause of action for barratry, but the legislation failed.

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