THE UNCONSTITUTIONAL BARRATRY LAWS - The Freddie Kruger of the Legal Profession

THE UNCONSTITUTIONAL BARRATRY LAWS – The Freddie Kruger of the Legal Profession

Written by J. J. Crook

America has been described as a litigious society. This may be due to the fact that the Nation’s law schools are graduating a glut of attorneys who, upon graduation, find that they have relegated themselves to a life of poverty because of too many deer on the grass and all fighting over the small scraps. According to National Public Radio, the mean average annual income of attorneys in 2009 was less that $32,500. 15 years ago, the mean average annual salaryof attorneys in Austin, Texas was $19,600. The joke was an Austin attorney is an attorney whose wife has a job. Litigation, under American Jurisprudence, is how citizens resolve differences and settle legal claims. However, ever strengthening barratry laws are attempting to restrain and shrink the litigation process probably due to overpopulation of the legal profession rather than letting water seek its own level among practicing attorneys. This is sort of throwing the baby out with the water. Litigation IS our system. If the American Judiciary doesn’t like litigation via heavy barratry laws, it should have devised another system for settling legal claims. The rise of non-system mediation is helping out. However, applying punitive measures against attorneys for trying to find business in a free enterprise to economically survive and practicing litigation is an oxymoron i.e. the system is punishing the system for using the system. This essay attempts to review America’s barratry laws and tries to determine where the judiciary and state bar associations are going with the barratry laws, and further whether that path is but hazy and unclear perception and only a destructive and joyless rabbit trail for the now nervous legal profession.

To begin with, networking is free enterprise which is the engine that drives America’s market economy i.e. capitalism. Any laws or professional rules that amount to a “restraint of trade” are illegal under the Robinson-Patman Act. Barratry is such a law. Further, barratry laws are Unconstitutional under the Equal Protection Clause of the 14^th Amendment i.e if non-attorneys have a right to solicit i.e. ask for, and promote business, so do attorneys. The barratry laws represent elitism and are an anachronism handed down and a legacy from Merry Ole England – a class system and aristocracy-type society where “commoners” are to know their place – and as such are alien to the American philosophy and ethos that all men are equal in rights and opportunities under the law. The English barratry laws slipped into our system anyway due to the judiciary’s infatuation with elitism, many of whose jurists would still wear powdered wigs if fashionable, and high white collars. Barratry laws arose in England during a pompous era wherein physicians and barristers wore tuxedos and top hats to surgery and the court house, and to touch money or ask for a case or business was considered “common”, uncouth, vulgar, and not classy at all among these hidalgos. American Federal Courts still exhibit this infatuation with [elitism] and European-style nobility in the manner they announce the beginning of a court hearing. E.g. First loud knocks on the door from outside the court room and then “Here ye, here ye, the first district federal court is now in session, the honorable Judge Drew presiding. Draw nine and ye shall be heard. God save the kin… ah, court.” The problem with this is America doesn’t do powdered wigs and the Queen of England is no more important than the Polish immigrant in Times Square hawking krout dogs. Different from America, Britain is anchored by tradition in class and caste systems composed of nobles, counts, barons and lords, and of course, those fretful “commoners” who should always know their place. Even after Parliament replaced the British monarchy, the people’s representative government was and is referred to as the House of Commons in a Constitutional Monarchy.

American mentality represents a refutation of the English aristocratic and noble class system, which nourishes on [inequality] of the masses, which culminated in the Revolutionary War to overthrow this type of tyranny, among others, against ordinary citizens i.e. the non-nobles. In the United States, all people are bore equal in law and opportunity and entitled to pursue economic survival by the sweat of their brow. In America’s market economy, money is not dirty or uncouth but the very essence of one’s physical needs and very survival. It is free enterprise and American business ingenuity that has given Americans the quality of life they enjoy and not elitism and powdered wigs or a privileged few being born into old money and title i.e. the so-called “blue bloods”. Such non-egalitarian notions are repugnant to the merit system of the United States of America. Respectability and dignity (really cosmetics) of a profession is a bad bargain if the trade off is the loss of individual U. S. Constitutional rights. Looking good doesn’t replace substantive rights. Some remnants of European aristocracy and nobles-type thinking still remain deeply embedded in American Jurisprudence. One example of such elitist thinking is the American Judiciary’s barratry laws which laws have become the joyless nightmare and Frankenstein of the legal profession.

Non-descript and non-interpretative if not incomprehensible global Barratry laws in America, even though Unconstitutional under the 14^th Amendment, still send attorneys to prison, get them disbarred, and cause millions of attorneys to practice [in fear] and confusion on a daily basis, not knowing exactly where the thin ice is that will lead to their professional, economic, and civil destruction. The doctrinal philosophy is barratry laws are designed to prevent attorneys from “stirring up litigation” i.e. soliciting and building business. Consequently, most attorneys are too timid to ask for business or a legal case, resulting in a few non-timid, unscrupulous, cheeky, corrupt attorneys taking the [entire] market, depriving the law–and-rule- compliant attorneys of their fair share of the market, by being connected to i.e. paying off judges, district attorneys, and chairmen of stacked state bar grievance committees.

In reality, barratry laws do not reduce litigation or make America a less litigious society as intended by barratry law aficionados. The amount of litigation remains the same. The only difference is all the legal cases are now funneled to a few “connected” attorneys to the exclusion of the remaining members of the state bars who as stated, due to the barratry laws, are denied their fair share of the market. Ironically, the barratry laws, rather than reducing litigation, invite corruption. The [misperception] of the elitists in the legal profession and the judiciary is in the phraseology of the ancient barratry doctrine i. e. “stirring up litigation”. Litigation IS the business of attorneys. Hence, under the barratry law, attorneys are being indicted, prosecuted, imprisoned, and disbarred for “stirring up business”. It would do well for these aberrant elitist types to understand that stirring up business is the solicitation of business. And solicitation of business happens to be Free Enterprise, the motor that drives a free market economy and capitalism. Under the barratry laws, attorneys who solicit business are guilty of free enterprise without which marketing efforts attorneys and non-attorneys alike would not economically survive, and they would starve or their families would be wards of the state. What makes the barratry laws Unconstitutional, hence illegal, is the 14^th Amendment’s Equal Protection of the Law Clause which guarantees EQUAL RIGHTS to every American citizen i.e. inarguably, if a non-attorney can ask for business, so can an attorney.

The nightmare gets worse. The axiom that identifies the ethos of the legal profession is “Experience, tempered by reason, corrected by further experience”. The elitist barratry laws appear to be outside of this maxim as there is no rhyme or reason to the laws. These elitist laws, passed on to the American judiciary, were created in Merry Ole England when it was uncouth for attorneys to touch money or ask for business. So very “common” for the class conscious British aristocracy. To illustrate how ridiculous and silly the barratry laws are, which account for the continuing destruction of many American attorneys, and to illustrate that there is no longer any modern day justification for these laws, attorneys today CAN solicit business and legal cases via advertisements on television, radio, billboards, newspapers, the internet, flyers, telephone recordings, and direct mail i.e. “target mailing”. Going from the ridiculous to the sublime, it is impossible for a deaf mute attorney to commit barratry. He or she has to write out a request for a case on a piece of paper or business card which is sanctioned and legitimate as target mailing.

Barratry laws, from the above examples, have been reduced to [weapons only] for politicians and competitors who are connected to compromising grievance committee members and chairman and district attorneys to control or destroy singled out attorney victims for political or competitive reasons. To offer an example of just how lethal the barratry laws are in the hands of corrupt attorneys who are “connected” and who may be the enemy or competitor of other attorneys, Article 38.12 of the Texas Penal Code states that one commits barratry if he or she gives “anything of value” for a case referral from another. “Anything of value” is a global and unbridled phrase which can be conveniently stretched like salt water taffy as a means to an end as previously mentioned, and is subject to arbitrary and capricious interpretation limited only by the creativity of one’s nefarious imagination. For example, “anything of value” could be interpreted as giving someone a cigar, taking a client to dinner, inviting one to a concert, buying someone a drink, giving someone, who referred a case to an attorney at one time, a set of useless old law books, taking a business associate to a football game, or sending them business via networking. E. g. An attorney, receiving a customer referred by a client who owns a lumber company, subsequently referring a client looking for lumber to that same referring lumber company client is guilty of barratry i. e. giving something of value for a case referral,for which that attorney can be criminally indicted, prosecuted, imprisoned, disbarred, and destroyed. An artificial jamming of free enterprise indeed and endangerment of all attorneys swimming in the ever murky waters of the barratry laws.

With this global omnibus provision of Article 38.12 of the Texas Penal Code, immense power is placed within the hands of Texas district attorneys and compromising grievance committee chairpersons or compromising attorneys who stack those grievance committees for professional and political survival purposes. Using the unbridled Article 38.12 of the Texas Penal Code, a corrupt politician can whimsically destroy an attorney professionally and annihilate the latter’s civil liberties if that attorney victim so much as gives a fountain pen to someone who has referred him or her a client, as the pen represents “anything of value”. Since we are into the unlimited, how about a stick of chewing gum? It has value. In addition, if a physician refers an auto injury patient to an attorney, and that attorney subsequently refers a client to that physician for treatment, that is barratry. [Something for something.] The attorney can be sent to prison. The unreasonableness and unsupportability of the barratry law is further illustrated in the following example using non-attorneys to assist illumination. If a roofing company owner refers a customer to a cement company owner for business and the cement owner then refers that same customer away from the referring roofing company to another roofing company, this would satisfy the barratry law (no something for something) but it would be committing economic suicide as the referring roofing company, as a valuable referral source of business, would end its relationship with the cement company, feeling betrayed, and refer its future customers to another cement company for cement.

In essence, the barratry law is asking attorneys to destroy [referral sources] of customers which accounts for the survival of most businesses. These referral sources takes years to develop. This provision in Article 38.12 of the Texas Penal Code is unreasonable and unacceptable as it asks attorneys to commit business suicide i. e. destroy all networking and referral sources of business. Of course a businessperson, short of brain damage, is going to send business to another business which is referring him or her business, to protect and value that referral source. Such marketing behavior represents economic survival. Without economic survival, no one is going to eat. If an attorney, as any other business, did not have referral sources due to a policy of no networking, his or her law practice would soon dry up and the attorney would not economically survive. In essence, the barratry asks attorneys to commit economic suicide. There is an axiom in law that no law will be passed or enforced which the population will not follow. If one is to be honest, every attorney [knows] that no attorneys follow the barratry laws and roll the dice on Article 38.12 every day - because she or he [has to], to economically survive. Referral sources are the economic life blood of every business.

For attorneys to voluntarily self destruct by destroying their referral sources is beyond legislatively unreasonable and capricious. It is economically insane. Texas attorneys, who have to ignore the barratry laws, live in fear daily dramatically reducing the quality of life of the legal profession. Regrettably, many of these same attorneys are occasionally eaten whole by these absurd, elitist, anachronistic, and illegal barratry laws. What jurists fail to grasp in their infatuation with the elitist barratry laws is receiving business from referral sources and referring back is “networking” which is the backbone of free enterprise and free enterprise is the motor which runs a marketing economy and capitalism. The illegal barratry laws, aside from being Unconstitutional under the Equal Protection Clause of the 14^th Amendment, are an assault upon free enterprise and capitalism itself and, as such, represent a “restraint of trade” which is further illegal under the Robinson Patman Act. In short, the barratry laws are not only economically injurious, foster corruption within the legal profession, they are also illegal for the reasons stated.

An attorney asking for business is free enterprise. Barratry laws which prohibit attorneys from asking for business or paying for referrals are a restraint of trade, hence, illegal. A brief overview of America’s market driven economy reveals the centuries old practices of rewarding individuals who refer business with finders fees, bonuses, discounts, coupons, credits, and commissions just to name a few.Even Attorneys in the legal profession, for decades, paid one third [referral fees] for cases referred to them by other attorneys. Within the legal profession itself, the barratry laws are [inconsistent] with the history and long time practices of the attorney market place in which referral fee percentages were set by the Texas State Bar itself.

In retrospect, the barratry laws are unhealthy and convoluted at best representing a bad idea but a destructive one via the inherent corruption and misery they have cause thousands of lawyers. Attorneys are entitled to make a living and go after business because business does not come by itself. The thousands if not tens of thousands of attorneys that inhabit most cities today are no longer the four or five attorneys [well known] to every small town resident, such as in the case of the movie, To Kill A Mockingbird. Attorneys are now invisible to the general public in large cities and, as such, must go after business to survive, - or find some other way to make a living and support their families. Their hands cannot be tied from feeding their children due to some centuries old elitist barratry laws inherited from Ole England in its former age of entrenched aristocracy where physicians and barristers wore tuxedoes to work and never discussed something as vulgar as money. Current barratry laws appear to result from aged laws that should have been repealed and removed from the books long ago as other aged laws, now inapplicable, have been. Barratry laws are ineffective as they do not prevent litigation but just corral all the cases for the “connected” few, to the disenfranchisement of the many. They are illogical, unreasonable, inconsistent, and illegal. The one thing the barratry laws have accomplished is reeking havoc upon a once enjoyable profession. Such laws are rooted in caprice and the arbitrary and, as such, do not represent sound legal doctrine.

An attorney sending a referral source of business “anything of value”, being a felony and global, unbridled, non-descript, and without limits, is a most unreasonable, arbitrary, and incomprehensible law which represents thin ice to the professional careers and civil liberties of all attorneys. Put in this light, the barratry laws, aside from being illegal, Unconstitutional, and economic suicide, represent an inquisitional-type scourge that is dragging down the legal profession itself. The laws are not only a bad idea in a market economy anchored in free enterprise and a prohibition against a restraint of trade, these anachronistic elitist laws, carried forth from class conscious Merry Ole England, are a modern day nightmare for attorneys, with the exception of corporate and large defense firms with 150 to 300 years of accumulated and inherited business who have less of an economic need to promote themselves, due to 99% of their business locked in place. It is time for the elitist jurists in this Country to shelf their powdered wigs, come into harmony with America’s non-elitist, non-blue blood market economy where the common people still have to hustle for a living, and declare these harassing if not persecutorial barratry laws illegal as a restraint of trade and Unconstitutional under the Equal Protection Clause of the 14^th Amendment, and rid the legal profession of this inquisitional-type scourge accounting for a joyless occupation where attorneys live in fear from day to day. Free enterprise for non-attorneys and attorneys alike is the market system that Americans live under. Without the engine of promotion, solicitation, and networking, the American economic system would collapse. It is finally time for the State Bars and Courts of this Nation to repeal the nuisance barratry laws and say goodbye to a very bad, old idea.

If all were to be honest, they would admit that attorneys are breaking and will continue to break the barratry laws every day, because they have to, to economically survive. Again and axiomatically a law should not be passed or retained upon the books which will not be respected by the populous and cannot be enforced. Ironically, it is not the attorneys who violate barratry statutes who are doing something illegal but rather the Nations jurists themselves in retaining and enforcing barratry laws while being fully aware that such laws are illegal as a restraint of trade and free enterprise under the Robinson Patman Act and, further, are Unconstitutional under the Equal Protection Clause of the 14^th Amendment to the United States Constitution which allows non-attorneys and attorneys alike to solicit business and promote their product or services in a market economy. The misperception is that barratry laws limit litigation. What justifies legitimate litigation being limited anyway? Barratry laws [do not] limit litigation. These legal claims already exist. It is just a question of which attorneys get them. No skilled insurance adjuster is going to pay [anything] on an insupportable claim. As in any other business, the attorney who gets the business is the attorney who goes after it. Business does not come on its own. Ingenuity, creativity, promotion, and solicitation are the forces that allow businesses to survive and others not in a market economy. Even in the legal profession, marketing is a dynamic process. Not an “inactive” state. And money really isn’t uncouth. It pays bills and buys infants’ diapers. Attorneys are businessmen and are governed by the same economic principles in a market economy that govern every other business and non-attorney. [Artificial] barratry laws, and like impediments that jam the spokes of the engine that propels a market economy and the growth of law firms and attorney prosperity, continue to be a disruptive force, championed by powder wigged highbrows and unrealistic elitist-type jurists, in a once joyful profession.

Food for thought.