“How Not to Lose Your Bar Card: New Barratry Laws” Presented By Bob Bennett•Issues before the Board of Law Bob Bennett & AssociatesExaminers 515 Louisiana Suite 200,Houston•Issues before the Chief Tx, 77002Disciplinary Council‟s Office 713-225-6000•Interim Suspension www.bennettlawfirm.com•Question and Answers! email@example.com www.avvo.com
1. TSU Undergraduate Application http://em.tsu.edu/admissions/forms/Application_for_Admission.pdf2. TSU Law School Application https://docs.google.com/viewer?url=http%3A%2F%2Fwww.tsu.edu%2Fpdffiles %2Facademics%2Flaw%2Fadmissions%2Fapp3.pdf3. Board of Law Examiners Declaration of Intent http://www.ble.state.tx.us/applications/declaration/ble-1%20_10-2010_.pdf 4. Board of Law Examiners In State Application http://www.ble.state.tx.us/applications/instate/ble-2_Instate_11-2010.pdf
TSU Law School Application• Have you ever been convicted of a felony? Yes/No If Yes, Please Explain.
Board of Law Examiners Declaration ofIntent • Are you presently, or have you been within the last ten (10) years, a party to any civil suit or proceeding (including any matters in which you were the subject of a proceeding for commitment based on incompetency, mental health, or substance abuse)? Yes/No
Board of Law Examiners Declaration of Intent• Have you ever been convicted of an offense, placed on probation, or granted deferred adjudication or any type of pretrial diversion? You must report any such offenses involving alcohol or drugs. You must report any failure to appear conviction resulting from any offense. You must report any conviction for failure to maintain financial responsibility (legally required auto insurance). You may exclude only Class C misdemeanor traffic violations• Have you, within the last ten (10) years, been arrested, cited or ticketed for, or charged with any violation of the law? You must report any offenses involving alcohol or drugs. You must report any failure to appear charge or warrant resulting from any such offense. You must report any such failure to maintain financial responsibility (legally required auto insurance), arrest, citation, ticket, or charge. You may exclude only Class C misdemeanor traffic violations• If you answered “YES” to Question 9(b) or (c), attach a completed Criminal History Form for each arrest, charge, citation, or ticket.
Board of Law Examiners Declaration ofIntent• NOTE: Expunged and Sealed Offenses: Matters expunged pursuant to Texas Code of Criminal Procedure Art. 55.02, or pursuant to another State‟s statute with the same force and effect, need not be disclosed. While expunged or sealed offenses, arrests, tickets, or citations need not be disclosed, it is your responsibility to ensure the offense, arrest, ticket, or citation has, in fact, been expunged or sealed. It is recommended that you obtain a copy of the Court Order expunging or sealing the record in question. Failure to reveal an offense, arrest, ticket, or citation that is not in fact expunged or sealed, raises questions related to truthfulness in addition to questions regarding the offense itself.• NOTE: Orders of Non-Disclosure: Pursuant to the Govt. Code §552.142 (b), if you have criminal matters that are the subject of an order of non-disclosure you are not required to reveal those criminal matters on this form. However, a criminal matter that is the subject of an order of non-disclosure may become a character and fitness issue. Pursuant to other sections of the Government Code 411.081(d), 411.081(i)(5), 411.083(b), 411.084(a), 411.087(a), and 411.100, the Texas Board of Law Examiners is entitled to access criminal history record information that is the subject of an order of non-disclosure. If the Board of Law Examiners discovers a criminal matter that is the subject of an order of non-disclosure, even if you properly did not reveal that matter, the Board of Law Examiners may ask you to provide information about that criminal matter.
Board of Law Examiners Declaration ofIntent• Have you, within the last ten (10) years, been charged with fraud, or alleged to have committed fraud, in any criminal or civil proceeding?• Have you, within the last ten (10) years, abused or been addicted to, or treated for the use or abuse of alcohol or any other substance, to include any court-ordered treatment?• If you have received mental health counseling or have been hospitalized for mental health reasons and do not know the diagnosis which was made, you should contact the health care provider responsible for your care and inquire as to whether you were diagnosed with bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder. In answering the following questions, you are entitled to rely on the diagnosis of your treating health care provider. You do not need to report any counseling, treatment, or hospitalization, which was for a diagnosis other than those included in the following questions.• Within the last ten (10) years, have you been diagnosed with, or have you been treated for, bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?
Board of Law Examiners Declaration ofIntent• Have you, since attaining the age of eighteen or within the last ten (10) years, whichever period is shorter, been admitted to a hospital or other facility for the treatment of bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?• Have you ever been ordered by a court to pay child support?• Have you ever been held in contempt or sanctioned by a court?• Do you have any student loan debts that are ninety (90) days or more past due?• Do you have any other debts that are ninety (90) days or more past due (including tax debts owed pursuant to federal or other law)?• Have you, within the last ten (10) years, failed to timely file any applicable state or federal income tax return and/or report required by law?
Board of Law Examiners In StateApplication• Since the date of filing my Declaration of Intention to Study Law, I _______________________ (enter “HAVE” or “HAVE NOT”) been formally charged with any violation of law, excluding cases which have been dismissed for reasons other than technical defects in the charging instrument; cases in which I have been found not guilty; minor traffic violations; cases in which the record of arrest or conviction has been expunged by court order; pardoned offenses; and Class C misdemeanors• Since the date of filing my Declaration of Intention to Study Law, I _______________________ (enter “HAVE” or “HAVE NOT”) been diagnosed with or treated or hospitalized for bi-polar disorder, paranoia, schizophrenia, or any other psychotic disorder.• Since the date of filing my Declaration of Intention to Study Law, I ______________________ (enter “HAVE” or “HAVE NOT”) been charged with fraud, or alleged to have committed fraud, in any legal proceeding.
Board of Law Examiners In State Application• Since the date of filing my Declaration of Intention to Study Law, I _______________________ (enter “HAVE” or “HAVE NOT”) been involved in civil litigation or bankruptcy proceedings.• Since the date of filing my Declaration of Intention to Study Law, I _________________ (enter “Have” or “Have Not”) been disciplined in any way for any matter by any college, university, law school or other institution of higher learning, or by any professor, administrator, employee or entity representing any college, university, law school or other institution of higher learning, or been allowed to withdraw from such an institution to avoid such discipline, whether or not the record of such action was retained in any file. (Discipline includes, without limitation, a letter or other written notice of reprimand or warning, suspension, expulsion, adjustment of grade, assignment of community service, any form of probation, or any other adverse action). (Entity includes, without limitation, residential facilities or other facilities owned or managed by a college, university, law school or other institution of higher learning.)
Board of Law Examiners In StateApplication• Since the date of filing my Declaration of Intention to Study Law, I ________________________ (enter “HAVE” or “HAVE NOT”) been held in contempt or sanctioned by a court. If you entered “HAVE,” attach a Continuation Form on which you explain your response. In addition to your Continuation Form, provide legible copies of the court orders).• Since the date of filing my Declaration of Intention to Study Law, I ________________________ (enter “HAVE” or “HAVE NOT”) failed to timely file applicable state or federal income tax returns) and/or reports) required by law.• Since the date of filing my Declaration of Intention to Study Law, I ________________________ (enter “HAVE” or “HAVE NOT”) collected federal withholding, Social Security, or Medicare taxes from the wages of employees and failed to forward such monies to the IRS. If you entered “HAVE,” attach a Continuation Form on which you explain your response.• Since the date of filing my Declaration of Intention to Study Law, I ________________________ (enter “HAVE” or “HAVE NOT”) failed to pay all taxes owed pursuant to state or federal law at the time such taxes were due. If you answered “HAVE,” attach a narrative statement on a Continuation Form.• Since the date of filing my Declaration of Intention to Study Law, I ________________________ (enter “HAVE” or “HAVE NOT”) abused or been addicted to or treated for the use of alcohol or any other substance, to include any court-ordered treatment.
BOARD OF LAW EXAMINERS DEFINITIONSOF GOOD MORAL CHARACTER & FITNESSREQUIREMENT• Rule IV:• (b) Good moral character is a functional assessment of character and fitness of a prospective lawyer. The purpose of requiring an Applicant to possess present good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Texas Disciplinary Rules of Professional Conduct. These character traits usually involve either dishonesty or lack of trustworthiness in carrying out responsibilities. There may be other character traits that are relevant in the admission process, but such traits must have a rational connection with the Applicant‟s present fitness or capacity to practice law and accordingly must relate to the legitimate interests of Texas in protecting prospective clients in safeguarding the system of justice within Texas. (emphasis added).• (c) Fitness, as used in these Rules, is the assessment of mental and emotional health as it affects the competence of a prospective lawyer. The purpose of requiring an Applicant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, courts or the profession. A person may be of good moral character, but may be incapacitated from proper discharge of his or her duties as a lawyer by such illness or condition. The fitness required is present fitness, and prior mental or emotional illness or conditions are relevant only so far as they indicate the existence of a present lack of fitness. (emphasis added)
BLE Explanation of Hearing• Dismissal: PDL dismissed and license approved• Probated License: Conditional Approval with probation of up to 2 years. Must apply to terminate probation and receive regular license. Violation of probation can be grounds to deny license altogether.• Denial: Determination that you do not possess good moral character or fitness and your application for a law license is denied.
BARRATRY What is it? Why is it bad? Is it serious?
Barratry: What is it?• A person commits an offense if the person: is an attorney, chiropractor, physician, surgeon, or private investigator and 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.
“Ambulance chasing” conjures images of attorneyssoliciting vulnerable clients during times of despairsetting the stage for actions that evolve into nuisance orfrivolous lawsuits. This criminal practice, known asbarratry, is the generation of profit for legal services byan attorney who stirs up a dispute and encourageslawsuits in order to file a groundless claim. Texas barratrylaws largely apply to personal injury cases, but withdisputes increasing over wills, trusts and other estate-related actions, is probate the new barratry growth area?
Barratry: Why is it bad?• Most attorneys are familiar with barratry and know that illegal solicitation is a third degree felony in Texas. However, Texas attorneys may not know that the legal profession‟s resistance to barratry has a long history. References to barratry reach as far back as Greek and Roman times when the predecessors of modern-day attorneys were required to “demonstrate a „personal connection‟ to a litigant before speaking on his behalf” and continue throughout the history of the Middle Ages in England. During the thirteenth century in England, Inns of Court trained affluent young men to practice law as a public service. Since these wealthy young men did not need an income, they practiced law for the betterment of their community and were prohibited from charging fees at all.
Today, most lawyers are not in a position to work forfree. Thus, barratry is even more of a threat to thewell-being and integrity of the legal profession dueto the widespread networks of unethical lawyersand non-lawyers who work in concert to take clientsaway from honest, hard working lawyers andvictimize clients by paying unnecessary expensesand fees for illegal solicitation.
Barratry: Is it Serious?• Section 38.12 Barratry and Solicitation of Professional Employment – General 3rd Degree Felony•• LADIES AND GENTLEMEN OF THE JURY:• The defendant, [name of defendant], is charged by [indictment or information] with the offense of [state offense], alleged to have been committed on or about [date], in [name of county] County, Texas. The defendant has pleaded not guilty.•• A person commits the offense of barratry and solicitation of professional employment if, with intent to obtain an economic benefit, the person:•• [knowingly institutes a suit or claim that the person has not been authorized to pursue];•• or•• [solicits employment, either in person or by telephone, for himself or for another];•• or•• [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];•• or•• [pays or gives or offers to pay or give a person money or anything of value to solicit employment];•• or•• [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• [accepts or agrees to accept money or anything of value to solicit employment];
Not Just Criminal…• The Texas Disciplinary Rules only mention barratry in section 8.04(a)(9): a lawyer shall not “engage in conduct that constitutes barratry as defined by the law of this state.” Texas‟s barratry statute is Section 38.12 of the Texas Penal Code.
New Barratry Law• (c) A person who was solicited by conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons, but who did not enter into a contract as a result of that conduct, may file a civil action against any person who committed barratry. (d) A person who prevails in an action under Subsection (c) shall recover from each person who engaged in barratry: (1) a penalty in the amount of $10,000; (2) actual damages caused by the prohibited conduct; and (3) reasonable and necessary attorney‟s fees.
Perry Mason• Perfect Lawyer • Homeless Houston man• Always elicited tearful • Hung out outside Criminal confession at the last minute. Courts Bldg. Just when things were looking • Talked to lots of people bleak for his client, a spectator • Referred a Defendant to an in the court would excitedly attorney confess in dramatic fashion • Attorney reciprocated by providing food and shoes • Both Mason and attorney indicted for Barratry • Mason referred client and received economic benefit • Charges ultimately dismissed
Houston Barratry Task Force• First Generation early 1990’s• More recently reformed• Starring Wendy Baker, Harris County Asst. D.A.• Aggressively seeking to prosecute “runners” and attorneys engaging in barratry• First media-worthy case involves prominent community activist( Johnnie Binder, Jr)• Other recent case involves a single alleged act of barratry, but has led to 5 indictments, one deportation and one interim suspension proceeding
Barratry Cases in Houston• Single count of alleged • Referral for compensation solicitation (Mokaram Law scheme Firm) • High profile community• “runner”, two lawyers, two activist “runner” support staff charged and indicted • Both lawyers and “runner”• Lawyer’s bonds set at $100,000. arrested( Others $50,000. • $5,000 bond each• State Bar tried to Immediately • Public emergence of Suspend Lawyer’s license Barratry Task Force• Brilliant Defense lawyers • Case will be used for prevented suspension publicity• Criminal charges still pending• Accrued more than $200,000 in defense costs, civil and criminal• Criminal charges still pending
Older Barratry Cases• Jet Blue Crash (Benton Mussel • USAir Crash (Benton mussel white, Jr) white, jr. and john OQuinn)• 2 lawyers allegedly engaged in • 4 lawyers allegedly engaged in 56 separate acts of barratry 50+ separate acts of barratry• Used runners, provided money • Used runners, provided money to runners to finance case to runners to finance case running activities running activities• Initially interim suspension • No interim suspension proceeding but State Bar proceedings, even though 1 abandoned lawyer in common with Jet Blue• Ultimately minor sanction allegations • 1 lawyer agreed to short suspension • Other 3 lawyers tried the case as won defense jury verdict
More Older Barratry Cases• One high profile personal • More recent solicitation injury attorney( Jeffrey case Stern) • Hospital patients at• Been charged by the State Hermann Memorial Bar 5 times in 10 years for Hospital complained about Barratry receiving unsolicited phone• Multiple times the State Bar calls from a lawyers office dropped the charges • Upon investigation, it was• Twice the cases were tried to determined that a phone a jury which rendered number belonging to an defense verdicts attorney had made 1,009• No interim suspension phone calls to the hospital action ever filed in a three month period• No criminal charges ever • Lawyer blamed an filed for Barratry independent investigator sharing his offices.• Currently under indictment for solicitation of capital • Lawyer ultimately agreed to murder a 6 month probated suspension