law-solicitation-of-clients | barratry

Law Concerning Attorney Solicitation of Clients

Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct states,

(a) A lawyer shall not by in-person contact . . . seek professional employment concerning a matter
arising out of a particular occurrence or event . . . from a prospective client or nonclient who has not
sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or
present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's
pecuniary gain. . . .

Tex. Disciplinary R. Prof'l Conduct 7.03 (1995), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A
(Vernon 2005).

Rule 5.03 provides,

With respect to a nonlawyer employed or retained by or associated with a lawyer:
. . .

(b) a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of
these rules if engaged in by a lawyer if:

(1) the lawyer orders, encourages, or permits the conduct involved . . . .

Tex. Disciplinary R. Prof'l Conduct 5.03 (1990), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A
(Vernon 2005).

The Texas Government Code, section 82.065, entitled "
Contingent Fee Contract for Legal
," states,

A contingent fee contract for legal services is voidable by the client if it is procured as a result of
conduct violating the laws of this state or the Disciplinary Rules of the State Bar of Texas regarding
barratry by attorneys or other persons. Tex. Gov't Code Ann. § 82.065(b) (Vernon 2005). "Barratry is
the solicitation of employment to prosecute or defend a claim with intent to obtain a personal benefit."
State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994). A client may void a contingent fee
contract that violates section 82.065 by expressing his intent to do so before the attorney has fully or
substantially performed. Tillery & Tillery v. Zurich Ins. Co., 54 S.W.3d 356, 359 (Tex. App.--Dallas 2001,
pet. denied) (citing Sanes v. Clark, 25 S.W.3d 800, 805 (Tex. App.--Waco 2000, pet. denied)).

the contingent fee contract was voidable by Cobb. See Tex. Gov't Code Ann. § 82.065(b).
Approximately one month after signing the contingent fee contract and two weeks after the Louisiana
lawyer filed suit, Cobb sent notice to the firm stating, "Thank you for your help, but I don't need you to
be my lawyer. I am returning your check." This was sufficient to void the contingent fee contract because
it occurred before the attorney fully or substantially complied. See Tillery, 54 S.W.3d at 359; Sanes, 25
S.W.3d at 805.
Cobbs v. Stern, Miller & Higdon (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Alcala)
denial of special appearance reversed in interlocutory appeal, attorney-client disputes and litigation,
void or voidable contract, solicitation of clients contingency fee agreement as against public policy,
affidavit testimony by interested witness, interlocutory appeal-special appearance)
Justice Alcala     
Before Justices Jennings, Alcala and Higley   
01-09-00112-CV  John L. Cobbs v. Stern, Miller & Higdon   
Appeal from 151st District Court of Harris County
Trial Court Judge:
Hon. Michael Engelhart