How Not to Lose Your Bar Card: New Barratry Laws

“How Not to Lose Your Bar Card:
New Barratry Laws”
Presented By Bob Bennett

•Issues before the Board of Law Bob Bennett & Associates
Examiners 515 Louisiana Suite 200,Houston
•Issues before the Chief Tx, 77002
Disciplinary Council‟s Office 713-225-6000
•Interim Suspension www.bennettlawfirm.com
•Question and Answers! bbennett@bennettlawfirm.com
www.avvo.com

1. TSU Undergraduate Application
http://em.tsu.edu/admissions/forms/Application_for_Admission.pdf

2. TSU Law School Application

https://docs.google.com/viewer?url=http%3A%2F%2Fwww.tsu.edu%2Fpdffiles
%2Facademics%2Flaw%2Fadmissions%2Fapp3.pdf

3. 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 of
Intent
• 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

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.

Intent
• 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.

Intent
• 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?

Intent
• 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 State
Application
• 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

_______________________ (enter “HAVE” or “HAVE NOT”) been diagnosed
with or treated or hospitalized for bi-polar disorder, paranoia, schizophrenia, or any
other psychotic disorder.

______________________ (enter “HAVE” or “HAVE NOT”) been charged with
fraud, or alleged to have committed fraud, in any legal proceeding.

Application
_______________________ (enter “HAVE” or “HAVE NOT”) been
involved in civil litigation or bankruptcy proceedings.

_________________ (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.)

Application
________________________ (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).

________________________ (enter “HAVE” or “HAVE NOT”) failed to timely file
applicable state or federal income tax returns) and/or reports) required by law.

________________________ (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.

________________________ (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.

________________________ (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 DEFINITIONS
OF GOOD MORAL CHARACTER & FITNESS
REQUIREMENT
• 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 Response to Predetermination Letter

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 attorneys
soliciting vulnerable clients during times of despair
setting the stage for actions that evolve into nuisance or
frivolous lawsuits. This criminal practice, known as
barratry, is the generation of profit for legal services by
an attorney who stirs up a dispute and encourages
lawsuits in order to file a groundless claim. Texas barratry
laws largely apply to personal injury cases, but with
disputes 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 for
free. Thus, barratry is even more of a threat to the
well-being and integrity of the legal profession due
to the widespread networks of unethical lawyers
and non-lawyers who work in concert to take clients
away from honest, hard working lawyers and
victimize clients by paying unnecessary expenses
and 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.

But your license is in jeopardy too.

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 O'Quinn)
• 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

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How Not to Lose Your Bar Card: New Barratry Laws

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