Attorney Solicitation and the Civil Barratry Statute

Soon after the Plaintiff was sued for an alleged debt, she received a letter from a lawyer soliciting her to speak with him about representing her in the lawsuit.  The attorney’s letter violated a Texas law that made it a crime for lawyers to solicit clients within 31 days of a lawsuit being filed against them.  The Plaintiff brought a civil action against the lawyer pursuant to the 2012 version of the Texas Civil Barratry Statute, which allowed plaintiffs to bring civil barratry claims against attorneys who violated “the laws of this state.”

The trial court granted the lawyer’s motion for summary judgment, based on its findings that the Civil Barratry Statute was unconstitutional and that liability under the statute is predicated upon a criminal prosecution or conviction.  On appeal, the Court of Appeals reversed, holding that the 2012 statute does not require a criminal conviction.  Additionally, the Court overturned the trial court’s holding that the statute was unconstitutional, because deciding the constitutionality of a criminal statute requires the participation of a party “with authority to enforce” the law, which in this case was the Dallas County District Attorney.

Shearer v. Reister, No. 05-12-01475-CV