September 6, 2009

Ambulance Chasers?

... or infringement on business practices?

The following article is from Texas Lawyer . You make the call.

Lawyer, Chiropractor Challenge Amendments to Barratry Statute
by Brenda Sapino Jeffreys

September 07, 2009

Upset over amendments to Texas' barratry statute that require lawyers, doctors and others to wait 31 days before soliciting individuals involved in accidents, a Houston lawyer with a traffic ticket/warrant practice and an Austin chiropractor are seeking a federal court order to declare the amendments unconstitutional.

H.B. 148 went into effect Sept. 1 and amended Texas Penal Code §38.12, which is commonly known as the state's barratry statute. Violating the statute is a Class A misdemeanor.

Houston solo Christopher Villasana alleges in the complaint in Donald McKinley, D.C., et al. v Greg Abbott that the law puts him at risk for a Class A misdemeanor for "sending directed, State Bar approved advertisements to persons on a ticket/arrest warrant list less than 31 days after the arrest/ticket." Dr. Donald McKinley of Austin alleges in the complaint filed in U.S. District Court for the Western District of Texas that he faces the threat of a misdemeanor if he permits his "very satisfied patients," who receive no economic benefit from the communication, from sharing his business cards or brochures with injured individuals.

Villasana and McKinley allege in the Aug. 27complaint that the amendments violate their constitutional rights under the First and 14th Amendments to U.S.Constitution and Article I, §§3 and 8of the Texas Constitution.

The plaintiffs allege H.B. 148 bars chiropractors and lawyers from communicating with prospective clients through written communication, in person or over the telephone before 31 days have passed after an accident or disaster or before 31 days have passed after an arrest or summons to a person or that person's relative.

They allege the law doesn't contain any exceptions and does not target misleading or deceptive communications.

"Instead, it operates as a complete and total ban against the proscribed communications, and no warnings or disclosures made with the communication, regardless of how truthful or informative the communication may be, can rescue the communicator from communicating an offense under the broad sweep of H.B. 148's prohibitions," they allege in the complaint.

They allege the amendments "dramatically changed the competitive landscape in favor of the insurance companies" who now have a month to persuade accident victims to sign away their rights before the victims may understand their legal rights or medical injuries.


On Aug. 31, U.S. District Judge Sam Sparks of Austin denied the plaintiffs' request for a temporary restraining order. Sparks wrote in the order that while he has "grave concerns" about the constitutionality of H.B. 148, Villasana and McKinley didn't file their complaint until right before the new law was set to go into effect on Sept. 1, and well after June 19, when Gov. Rick Perry signed it into law.

"Without criticism to Plaintiff's counsel, the application for a TRO in this case was brought a mere one day before the effective day, when it had been obvious since June 19, 2009, at the latest, that the statute would become effective on September 1, 2009," wrote Sparks, who held the hearing on the motion for the TRO for U.S. District Judge Lee Yeakel.

Sparks wrote that he's confident Yeakel will schedule a hearing on a motion for a temporary injunction in the very near future and there is no substantial possibility of immediate, irreparable harm to the plaintiffs.

Lynn Carter, an assistant attorney general who represented Abbott at the TRO hearing, refers comment to Thomas Kelley, a spokesman for the AG's office. Kelley declines comment.

Plaintiffs' attorney Martyn B. Hill, a shareholder in Pagel, Davis & Hill of Houston, says his clients filed the suit shortly before Sept. 1 to ensure they could have a hearing on the TRO close to the day the law would go into effect.

Hill says Villasana is now prohibited under the new law from sending letters to people who received traffic citations or missed court hearings for those tickets.

"We have a right to a lawyer — a constitutional right — and here it is the Legislature saying, Let's delay marketing to someone who needs a criminal defense lawyer for 31 days,' " Hill says. "If you get the letter, don't like the letter, throw it in the trash, but at least it reminds you."

Hill says Yeakel held a telephone conference with lawyers in the case on Sept. 3 and set the case for trial on Oct. 9. That date could not be confirmed through PACER, and Kelly, the AG's office spokesman, did not respond to an e-mail request to confirm the date.

Attempts to reach Villasana were not successful.

State Rep. Todd Smith, R-Bedford, a solo who sponsored H.B. 148, says, "It seems clear that there's nothing unconstitutional about this sort of prohibition against telephone or in-person solicitation."

A couple years ago I had a close encounter with the center piece of a sectional couch, lost from the bed of the pick-up just ahead of me. I almost made it, but clipped my quarter panel and made a small dent just behind the wheel well. The owner of the furniture stopped, but was rather obnoxious so I phoned for the police. The recalcitrant gentleman received a citation for failure to secure his load, and I received his insurance information. The cop wrote an accident report.

The very next day I learned that accident reports are public record, including all the information on them. Almost immediately I started receiving phone calls from body shops and chriopractors, on my cell phone, soliciting my business. They knew everything about me, including my license number.

So I'm not entirely certain I disagree with this new amendment. Telephone solicitors have not found a warm place in my heart, and hearing some dude tell me he was calling "from the doctor's office to set up my medical treatment plan" rather chapped my arse.

So, from a personal perspective I support the ammendment.



Old NFO said...

AGREED! It's the 10% that have screwed it up for the rest of them. Too bad that they actually have to obey a law :-)