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 Services," 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)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by 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