HOUSTON – Two Texas brothers, the subject of a lawsuit alleging violations of the state’s criminal barratry statute, claim they have ties to a competitor who directed them to make phone calls in an effort to secretly record alleged violations.

The statute, enacted in 2011, allows prospective clients to sue offending attorneys in exchange for a payment of $10,000 per violation. Proponents of the statute argued that barratry made instances of unethical attorneys illegally contacting clients before they were solicited by those clients common.

In the case of Carter v. Kubosh, more than 70 plaintiffs allege that when they called bail bondsman Michael Kubosh to find out the price of a bail bond, they were turned over to Michael Kubosh’s brother, attorney Paul Kubosh, for potential business, even though they didn’t ask to speak with a lawyer.

According to the lawsuit, this practice of turning those seeking bail bonds over to an attorney constitutes solicitation of employment under the barratry statute.

However, the Kubosh brothers allege in a counterclaim that the 74 plaintiffs in Carter were asked to call the Kuboshes by attorney Andrew Sullo, a competitor of Paul Kubosh.

“This lawsuit is an abuse of the judicial system and burdens the taxpayers and the court system and therefore delays justice for who are in need of access to the courts to remedy real injuries,” Joseph R. Larsen of Sedgwick LLP and the Kubosh brothers’ attorney told the Southeast Texas Record on behalf of the brothers. “The Kuboshes are the only ones who have suffered an injury.”

The brothers allege that Sullo prepared scripts for the plaintiffs to use when they called Kubosh Bail Bonds, and that each conversation was secretly recorded in an effort to get evidence to back up the barratry claims against the brothers.

The Kubosh brothers’ counterclaims filed against Sullo and the 74 barratry lawsuit plaintiffs raise allegations of fraud, wiretapping and Racketeer Influenced and Corrupt Organizations (RICO) Act violations.

129th District Judge Michael Gomez denied the brothers’ fraud claim against Sullo, but the remainder of their counterclaims are still pending.

“The plaintiffs’ claims are legally and factually inadequate to file a legitimate lawsuit under the Civil Barratry Statute,” Larsen said.

Specifically, Larsen said each plaintiff initiated the call to the Kuboshes at the direction of Sullo while he was sitting next to and coaching them. Larsen said the Texas Civil Barratry Statute requires that the defendant initiate the phone call. In addition, Larsen said each plaintiff called the Kubosh brothers under a contract with Sullo and made the call after first hiring Sullo to represent them in their underlying traffic cases.

“There was no solicitation or injury because each plaintiff called Kubosh Bail with the purpose and expectation that his or her call would be transferred to Kubosh Law,” Larsen said. “As a result, there was no injury as a result of the transferred call, so no plaintiff has the constitutionally required necessary standing to sue.”

Larsen said Sullo competed fiercely against the Kubosh brothers for many years. Before the filing of this lawsuit, Larsen said the Kuboshes were the driving force behind the issuance of State Bar Ethics Opinion 599, which declared as unethical practices allowing attorneys to plead no contest on behalf of defendants who failed to appear at their scheduled hearing in Houston Municipal Court.

“This opinion and the resulting grievances affected the way Sullo and his attorneys, among others, bonded in the Houston Municipal Court,” Larsen said. “We believe this was a catalyst to the setting up of this lawsuit. It was no coincidence that these cases were generated by Kubosh competitor Andrew Sullo.”

Larsen said the Kubosh brothers have filed a petition for writ of mandamus, asking the 1st Court of Appeals to overturn a trial court order denying their discovery requests for emails regarding setting up a conference room at Provost Umphrey to stage calls from Jefferson County. The 1st Court of Appeals granted the Kuboshes’ request for oral argument on Aug. 9, setting the case to be heard at on Sept. 28.

The 1st Court of Appeals has stayed all the proceedings at the multi-district litigation trial court pending resolution.

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