On the night of May 31, 2007, Samuel and Delicia Cantu are at the home of their son in Premont, Texas. They've just learned he was killed instantly in a car wreck on Highway 77. Around 1 a.m., two men knock on the door. One is an attorney who understands there was a Wal-Mart truck involved in the accident. Would the Cantus consider suing?
That's the story told by the affidavit behind two recent Jim Wells County indictments.
Attorney Benito Garza and alleged case runner Timothy "Sugar Bear" Trevino face the criminal charges of barratry and solicitation of professional employment. "Barratry" describes attorneys' unethical solicitation of clients — "ambulance chasing" in the vernacular — and curbing the practice has prompted an uneasy alliance between tort reform advocates and the Texas Trial Lawyers Association. Those groups, who say their interest reflects widespread concern within the legal community, are urging the Legislature to do something about the predatory activity's prevalence in the state. But though they agree reform is needed, they haven't found a solution suitable to everyone.
"Everybody agrees barratry's bad. Everybody agrees it's a serious problem. Everybody agrees something needs to be done. Then the discussion fragments," says Mark Kincaid, the legislative director for the trial lawyers group.
State Rep. Will Hartnett, R-Dallas, a probate lawyer who sits on the House Judiciary and Civil Jurisprudence Committee, addresses the struggle to find the right antidote: "We all know there's a problem, but sometimes the cure can be worse than the problem."
Illegal client solicitation frequently depends on case runners, who maintain a network of informants — emergency medical technicians, law enforcement officials, court clerks — to find potential clients. They then hand them over to lawyers, who deploy both pressure and charm to get a contract signed. According to the affidavit in the Cantus' case, Garza dropped by the next day with "lots of food," while Trevino showed up uninvited to a private viewing of the son's body, each emphasizing the timely nature and magnitude of the case. A call placed to Garza's law firm revealed the number had been disconnected.
Currently, victims can find recourse through filing a complaint with the State Bar of Texas or the criminal justice system. The former provides little muscle against case running because barratry victims often don't know they have option to complain to the state bar, reform advocates say, and the association doesn't have any power over non-lawyers. As for the latter, they say district attorneys, already pressed for resources, would rather prosecute violent crimes than white-collar disputes between lawyers. In the case of Garza and Trevino, it was the attorney general's office, not local authorities, that initiated the prosecution. A barratry conviction is also difficult to prove, especially when the suspected lawyer controls access to the client.
Then there's the influence that so-called ambulance chasers can wield in the small South Texas communities where case running often occurs. "Folks that are involved in this barratry business are making big money and they spread it around during elections," says Bill Edwards, a Corpus Christi trial lawyer who's outspoken on the issue.
During the last legislative session, state Reps. Todd Smith, R-Euless; Jim Dunnam, D-Waco; and Allen Fletcher, R-Tomball, all introduced bills tackling the issue of reform. Only Smith's bill, which banned "licensed professionals" like lawyers and chiropractors from contacting victims for employment within 31 days of an accident, passed became law [Editor's note: Dunnam's bill also passed, but was vetoed by the governor].
As soon as the bill took effect, however, a lawyer and a chiropractor challenged it in federal court, saying it violated their First Amendment rights. In March, U.S. District Judge Lee Yeakel of Austin agreed with them and struck down the 31-day ban. The attorney general's office, which defended the law for the state, has appealed the decision to the 5th Circuit Court of Appeals in New Orleans.
Given the "rare event" that both tort reformers and trial lawyers are pushing for it, Harnett says he thinks there will be "huge interest" in the issue during the upcoming session. At the end of May, the House Judiciary and Civil Jurisprudence Committee met to take up an interim charge to study possible changes to barratry law, including the creation of a civil cause of action, an idea set forth in the Fletcher bill and in an unsuccessful amendment to Smith's bill from state Sen. Jeff Wentworth, R-San Antonio. Such a statute would create a tort offense for improper solicitation and allow plaintiffs to file civil suits against lawyers they believe improperly solicited their business.
That solution has tort reformers in the unlikely position of spending their considerable political capital on devising a new way for people to sue. Hugh Rice Kelly, Texans for Lawsuit Reform's general counsel, disputes there's any irony in that: He has no objection to people suing each other, he says, just as long as that happens with "lawsuits for things that count" not those that "attempt to impose liability where liability should not exist." For his organization, barratry is one of the things that counts.
The plaintiff's bar supports a civil remedy, too, though the trial lawyers organization urges caution in drafting the bill's language. "You want the good lawyers to know what they need to do to be safe, and you want the bad lawyers to know that there's a big, clear remedy that's going to be available to use against them," Kincaid says.
Kincaid worries that a penalty involving fee forfeiture could open the door for clients who've just paid a third of their winnings to a lawyer to turn around and accuse them of solicitation. He explains it this way: "A big fear that some have [with a civil penalty] is that you simply energize a bunch of case runners to go and get those cases, now the target is … the guy who just won the case."
And peace between the sworn foes isn't imminent, either. Each side suspects the other's motives in pursuing the legislation. "They are crying a big batch of alligator tears over the horrors of what's happening to victims of barratry," says Kincaid of tort reformers, adding, "They've never showed any interest in protecting injured people in the past, and it is the most hypocritical thing in the world for them to suddenly show an interest in this, coincidentally when the target would be trial lawyers."
Kelly brushes off concerns about an overly broad statute catching honest lawyers in its net. "Plaintiff lawyers are not very sensitive to the plight of the businessman who's being sued whose only remedy is to win his case," he says. "And yet, the truth is, that's our legal system. You get sued and you're not guilty. You gotta win your case. That's what a lawsuit is."
[Update: Rep. Jim Dunnam has posted a response in the comments section concerning the governor's veto of his barratry bill, HB 3515, last session]