State Representative Ronald Reynolds, the first African American elected in Fort Bend County to the Texas legislature since reconstruction, has been arrested on barratry charges. Once selected as “Freshman of the Year” by his colleagues, Reynolds was arrested and charged with barratry –both in the solicitation of clients on his own and through the office of a local chiropractor.
Reynolds is accused of using a runner to approach a local attorney who was involved in a car accident. Ironically, Reynolds voted for the tough barratry law. Here is the relevant provision:
§ 38.12. BARRATRY AND SOLICITATION OF PROFESSIONAL
(a) A person commits an offense if, with intent to obtain an economic benefit the person:
(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself or for another;
(3) 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;
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
(5) 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
(6) accepts or agrees to accept money or anything of value to solicit employment.
It is the classic ambulance chasing allegation, though arrests remain rare. There are signs in the courthouse warning that barratry is a crime. Recently, the United States Court of Appeals for the Fifth Circuit ruled in McKinley v. Abbott, 643 F.3d 403 (5th Cir. 2011), addressed the statute. Notably, that case also involved the limitation on using chiropractors of accident victims — a popular avenue for acquiring clients who increasingly go to chiropractors with their injuries. The Court recognized that “[p]ersonal solicitation like that covered by the Barratry Statute is commercial expression protected by the First Amendment. 21 A restriction on commercial expression must survive the intermediate scrutiny articulated by the Supreme Court in Central Hudson.” On the second prong of the test, the Court held:
The record contains ample evidence that the harm caused by solicitation of accident victims by chiropractors within the first 30 days after an accident is real. The state produced testimony from the Director of Enforcement at the Texas Board of Chiropractic Examiners that the Board had received a large number of complaints from accident victims concerning solicitation activities of chiropractors directly following the victims’ automobile accidents. Additionally, the state introduced anecdotal testimony from accident victims about solicitation directly after an automobile accident and the stress caused by those solicitations. There was also expert testimony about the stress disorder many people suffer for up to a month after a traumatic event, which can lead to cognitive dysfunctions in information processing and decision-making. This is sufficient evidence to demonstrate that the harm is real. And, we conclude that a rule prohibiting solicitation for a 30 day period materially alleviates that harm by preventing the harm identified by the state for the amount of time needed.
The Reynolds case is likely to explore similar issues of when contacts cross the line into barratry and to what extent such speech is protected under the first amendment.