When a lawyer gets sued by a client and accused of legal malpractice, that can be a big headache for the lawyer. It’s an even bigger headache when one lawyer sues another lawyer and a former client too. That is what recently played out in a state court in Beaumont, Texas.
According to media reports, Beaumont, Texas attorney John Morgan filed suit against a San Antonio attorney, his law firm, and a former client. Morgan accused fellow attorney Vincent Quintanilla and his firm of poaching the client.
The facts are somewhat bizarre with Morgan apparently accusing Quintanilla of extortion, stalking, barratry and trying to steal a client.
Barratry? That is a law seldom used today. In most states, it refers to illegal solicitation of clients or what many call “ambulance chasing.” Although the practice is widespread in many areas of the country, few lawyers get caught and disciplined for it.
The Texas legislature has a very detailed definition of barratry. In fact, there barratry is a serious crime (third degree felony) that can land a lawyer in jail for a minimum of 2 years and jeopardize his or her law license.
The Texas Penal Code defines barratry as follows:
(a) A person commits [the offense of barratry] if, with intent to obtain an economic benefit the person:
(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself or for another;
(3) 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;
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
(5) 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
(6) accepts or agrees to accept money or anything of value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an offense under Subsection (a);
(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or
(3) 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).
(c) It is an exception to prosecution under Subsection (a) or (b) that the person's conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.
(d) A person commits an offense if the person:
(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and
(2) 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, that:
(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;
(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;
(C) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or
solicitation was provided;
(D) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;
(E) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or
(F) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
(e) For purposes of Subsection (d)(2)(D), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person's relative.
(f) An offense under Subsection (a) or (b) is a felony of the third degree.
(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.
(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).
(i) Final conviction of felony barratry is a serious crime for all purposes and acts, specifically
including the State Bar Rules and the Texas Rules of Disciplinary Procedure.
That may sound like a lot of legal mumbo jumbo for some so we will break it all down.
Barratry laws in most states are designed to protect clients from undue influence. For example, in some states there is a cooling off period after an injury accident that prevents lawyers from directly soliciting clients. Unless a lawyer has an existing relationship with you or you request a lawyer's services, we don’t know any state where a lawyer can simply show up at a hospital or accident scene and solicit clients. Unless there is a “cool down” period, most states allow mail solicitations. That means in many places, immediately after an accident, injury victims can expect to be bombarded with letters from lawyers hoping to land their case.
Because barratry claims are often connected to personal injury cases, the term “ambulance chaser” was coined.
The battle for client within the personal injury world is particularly extreme. Billboard, TV ads, radio ads, catchy 800 numbers… it can be intense. (We have found some really over-the-top ads at posted them at the end of this article including a lawyer literally chasing an ambulance!)
Not only can’t lawyers directly solicit, they can’t employ runners to do so either.
The solicitation restrictions vary greatly from state to state. If you are a client, however, and believe you were improperly solicited into signing a representation agreement, you may have a claim against the lawyer.
My Lawyer Is an Ambulance Chaser, What Should I Do?
The term ambulance chaser is used loosely. Not every aggressive solicitation tactic is illegal or constitutes barratry. And not every lawyer that makes an illegal solicitation is a bad lawyer.
Whether or not the lawyer did a bad job on your case, there are consequences for lawyers that don’t follow the rules.
Illegally soliciting a lawyer can render a fee agreement null and void. In a big case, that may mean big bucks. Let’s say you were pressured while lying in a hospital bed to sign a fee agreement. And that fee agreement required you to pay half of any recovery to the lawyer. If your case settles for $2 million, the lawyer walks away with $1 million. In certain states, the lawyer might have to disgorge his fee or even be liable for damages.
Barratry is also a disciplinary matter. A lawyer can lose his license for illegally soliciting business.
Is this behavior also legal malpractice? Maybe. Much depends on the facts and the state where the barratry or illegal solicitation occurred.
Suing your lawyer for malpractice in such circumstances can be tricky, however. Many legal malpractice and professional negligence insurance policies exclude claims where the underlying conduct was criminal. For example, a lawyer that steals from clients probably isn’t guilty of malpractice, she is guilty of theft. So, if a client accuses his attorney of barratry, there may be no insurance available. Why? Because in states like Texas barratry is a crime.
Back to Morgan and Quintanilla…
Morgan’s lawsuit was filed on March 21st. A day later he filed a motion to dismiss. That makes it hard to figure out what happened or if anyone is really guilty of anything. Morgan’s suit says that “Mr. Quintanilla is what is commonly referred to as a ‘bottom-feeder lawyer,’ who makes his living in an illegitimate manner, and has a very poor reputation.”
An article in the SE Texas Record suggests that Quintanilla admitted under oath that he committed extortion. (We can’t imagine a lawyer doing that!) That same article says, however, Quintanilla’s client claims Morgan committed barratry. Are both lawyers accusing the other of a crime?
Our sincere hope is that the two lawyers have worked out their differences and that no more scandalous allegations need to be aired in court. We feel for the client who is seemingly caught between two lawyers, although Morgan reportedly sued his former client suggesting there is more to the story.
What to Do if You Were Pressured by a Lawyer or the Victim of an Illegal Solicitation
There is no one size fits all bright line test to determine if a lawyer has illegally solicited a client. Offering money to a client to sign a representation agreement, sending runners to accident scenes or emergency rooms and the like, however, are probably illegal everywhere.
If you feel like you have been the victim of barratry, an illegal solicitation or feel like you were pressured into signing a representation agreement or entering into a settlement, give us a call. In many states there is only a small window of time to file claims against lawyers. If you are sitting on the fence or need answers, call us. All inquiries are confidential and without obligation.
To learn more about legal malpractice claims, visit our legal malpractice information page. If you have specific questions or want to know if you have a case, contact us online or by phone at 877-858-8018. All inquiries are protected by the attorney – client privilege and kept strictly confidential.