Texas Bar Journal
When lawyers thought of spurious litigation or solicitation of clients, they thought only of disciplinary rules and possible sanctions by a grievance committee. Such misconduct is not, however, merely a breach of professional etiquette or a violation of disciplinary rules. It is also a crime. Barratry, unlike most forms of professional misconduct, is criminal. The sanctions are more serious and the procedures are often less familiar than for other ethical lapses. Personal solicitation of prospective clients is the evil targeted by the barratry statute.
In Bates v. State Bar of Arizona, the Supreme Court first recognized lawyer advertising as commercial speech subject to First Amendment protection. The Bates opinion did not, however, decide whether, or to what extent, a state might regulate in-person solicitation. In Ohralik v. Ohio State Bar Association, direct in-person communication by a plaintiff’s lawyer with a potential personal injury client was held to be subject to the First Amendment but not protected from disciplinary regulation. The Supreme Court’s First Amendment jurisprudence suggest that while personal solicitation for purely pecuniary gain might be banned, some kinds of personal solicitation, including those in writing, cannot be completely prohibited, although they might be reasonably regulated.
In order for the criminal prosecution for solicitation of clients by attorneys to become more commonplace in Texas, hard questions of constitutionality and statutory construction must be addressed. The Texas ban on in-person solicitation will withstand First Amendment scrutiny. Since the barratry offense absolutely prohibits rather than merely regulates solicitation, there may be less constitutional ground beneath the statute than had previously been supposed.
Gerald S. Reamey, The Crime of Barratry: Criminal Responsibility for a Branch of Professional Responsibility, 53 Tᴇx. B.J. 1011 (1990).