State Rep. Allen Fletcher, R-Cypress, is proposing a tweak to the 2011 civil barratry statute because he says, “Lawyers have found a loophole in the law.” When presenting House Bill 1711 to the Texas House Judiciary & Civil Jurisprudence Committee on March 11, Fletcher explained that his bill will “close the loophole.” Under Government Code §82.065, a person can sue an attorney who secured any legal contract by violating barratry-related state laws or barratry-related rules in the Texas Disciplinary Rules of Professional Conduct. A client who prevailed in voiding a contract could recover attorney fees and expenses already paid to the lawyer, as well as actual damages and attorney fees. The law also allows a barratry victim who didn’t sign a legal contract to sue “any person who committed barratry” and win a $10,000 penalty from each violator, actual damages and attorney fees [See "Battling Barratry: Lawyers Publicize New Law, Predict Its Impact," Texas Lawyer, Sept. 12, 2011, page 1]. Fletcher, a former police officer, told committee members, “Effectively, under current law, this penalty only applies when there is no contract signed. House Bill 1711 will close this loophole and hold lawyers accountable for their actions by saying a penalty can be enforced even if the contract is voided voluntarily.” William R. “Bill” Edwards Sr., founder of The Edwards Law Firm in Corpus Christi, testified in favor of the bill. “The $10,000 penalty that we are talking about is more a deterrent for the people who think about violating the law than it is about making money for anybody. It’s got enough juice in it for a client to maybe be interested in cooperating. Without the cooperation of the client, there’s really nothing you can do,” said Edwards, who lobbied for the 2011 law [See "The Impact Players: William R. 'Bill' Edwards Sr., Barratry Battle," Texas Lawyer, Dec. 19, 2011, p. 15]. The committee left the bill pending.
Message Received
On March 12, the Senate Criminal Justice Committee unanimously passed a bill that would strengthen the consequences for prosecutors who violate attorney disciplinary rules requiring disclosure of exculpatory evidence. Sen. John Whitmire, D-Houston, said he wanted to “send the bar a message,” by making sure that Senate Bill 825 is heard on the Senate floor. SB 825 would change attorney disciplinary standards for grievances alleging “prosecutorial misconduct.” It prohibits a grievance panel from issuing a private reprimand for a violation of rules in the Texas Disciplinary Rules of Professional Conduct (TDRPC) requiring prosecutors to disclose evidence “that tends to negate the guilt of the accused or mitigates the offense.” It requires the Supreme Court to ensure the four-year statute of limitations for such violations begins when “a wrongfully imprisoned person is released from a penal institution.” Michael Morton, who served nearly 25 years in prison after he was wrongfully convicted of murdering his wife, testified at the committee that the prosecutor in his case has argued that “he shouldn’t be held accountable” because the statute of limitations expired. “I want to be clear: I am not seeking revenge,” Morton said. “But what I am seeking, and I’m asking you to help obtain, is some transparency, and most of all some accountability.” Ron Bunch, chairman of the Commission for Lawyer Discipline, testified that it’s “a good idea” for the statute of limitations to begin when a wrongfully convicted person gets out of prison. He said he thinks the bill is a “clarification,” because currently the TDRPC “allow us to pursue disciplinary cases when the withholding of exculpatory evidence is discovered.” Bunch said he’s served for six years on the commission, which decides attorney disciplinary cases, and he’s never seen a prosecutor receive a private reprimand for prosecutorial misconduct. But Bunch said he wants to protect the ability to give private reprimands in appropriate cases. “We believe both ends of the spectrum, disbarment and private reprimands, can be useful,” said Bunch, a Waxahachie criminal-defense solo. He added that in some cases, “mandating a specific result or sanction . . . would be taking a tool away.”
