[Censored] Amicus Brief in Appeal of Conviction under Texas Criminal Barratry Law: Ronald E. Reynolds v State of Texas - Amicus Curiae Brief in Support of En Banc Rehearing

(Appeal of Texas attorney and lawmaker Ron Reynolds' conviction under the anti-barratry statute)
TEXAS PENAL CODE SECTION 38.12 BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT, INCLUDING EMPLOYMENT AS ATTORNEY - 31-DAY NON-SOLICITATION BLACK-OUT PERIOD 

Also see comment: Soliciting clients with 31 days - One Texas lawyer heading to jail, but another one got the barratry statute declared unconstitutional as to him so he could keep soliciting. 

Texas House Rep. Ron Reynolds Official Web Page 


NO. 08-15-00373-CR  

IN THE COURT OF APPEALS

FOR THE EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ON TRANSFER FROM THE NINTH COURT OF APPEALS IN BEAUMONT, TEXAS

RONALD EUGENE REYNOLDS,

                  APPELLANT,

v.
  

THE STATE OF TEXAS,

                                                                                     APPELLEE.

Per Curiam Order Refusing to Consider Amicus Curiae Brief 

February 8, 2018 

Appeal from County Court at Law Number Four

Montgomery County, Texas

AMICUS CURIAE BRIEF IN SUPPORT OF PANEL REHEARING

OF APPEAL BY NOW-SUSPENDED TEXAS ATTORNEY AND BARRATRY DEFENDANT

RONALD E. REYNOLDS, TEXAS BAR CARD NUMBER 24025610

February 7, 2018

AMICUS CURIAE MEMBER OF THE PUBLIC 

IN SUPPORT OF RONALD EUGENE REYNOLDS

                                                                         

TO THE HONORABLE COURT OF APPEALS:  

Dear Chief Justice Crawford McClure as opinion author, and distinguished members of the panel: 

I have no reason to question, nor am I qualified to question, the correctness of the reasoning of the panel leading it to affirm Mr. Reynold’s conviction.

That said, I am very troubled by this case, for reasons that may be less obvious to other people than they are to me, having researched and followed the evolution of the Texas barratry statute, cases brought under it and media coverage thereof, and the sparse appellate case law it has spurred over the course of the past few years.

What concerns me most is that Mr. Reynolds was convicted under a law that others have gotten declared unconstitutional because it interfered with their desire to make money. Additionally, as a result of the conviction, Mr. Reynolds has been suspended from the practice of law.[1]

A.                Solicitation within 30 or 31 days versus later

As I understand it, the Reynolds conviction is one under the Penal Code provisions that says solicitation of professional employment may not happen within 31 days of the occurrence of specified events rather than the more serious forms of barratry that may result in felony prosecution and convictions. One charging instrument is attached to this brief as Appendix B. The hand-written correction on it suggests that the District Attorney was not even sure about whether it should be 30 days or 31 days under the relevant Penal Code provision, which the charging instrument does not even cite.

In all of the parallel Reynolds cases, the predicate event is the accident/collision giving rise to the claim against the tortfeasor (or suspected/putative tortfeasor, at that point). In other fact scenarios under the barratry statute, and for lawyers in other segments of the legal services business, the clock-starting occurrence is the warrant date or the arrest (in criminal cases), or the filing of a civil lawsuit (typically, a debt collection suit). This point may be lost on the ambulance-chasing media, but it should not be lost to the legal community.

Lawyers representing corporations, financial institutions, and insurance companies get their book of business by cultivating relationships with companies and are rewarded with repeat business if they perform to the client’s satisfaction. Lawyers in many other lines, however, whether plaintiff of defense, depend on a steady stream of small cases and once-in-a-lifetime clients to keep the law firm afloat. Is one category of rainmakers inherently more worthy than others? Should mere drizzle-inducers, or – less generously – the bottom feeders – be inherently suspect? And a few of them thrown in jail once in a while to remind them of their lowly status? 

B.                 Rich Reister vs. Wretch Reynolds

A few years ago, one lawyer in the bottom-feeder stratum on the pecking order, Rich Reister in Dallas (pun fortuitous) was sued under the civil barratry statute for soliciting individuals all too promptly after they became defendants in debt collection suits.[2] They likely got a letter from Mr. Reister even before the process server arrived on their doorstep.

Mr. Reister had scooped up the information on these defendants and their addresses (i.e. ”leads” or “prospective clients” in more respectable marketing lingo) from trial court dockets for the purpose of contacting them and pitching his legal services to them. The civil barratry suit subsequently brought against him by Janet Shearer – one of those who had not volunteered to become the focus of attention of either the debt collection lawyer or his opposite number -- made a detour the Dallas Court of Appeals, which resolved the appeal against Mr. Reister. See Janet L. Shearer v Rich Reister & The Law Offices of Rich Reister & Associates, No. 05-12-01475-CV (Tex.App. – Dallas, April 28, 2014, no pet.) (reversing summary judgment for Debt-Defense Attorney Reister on jurisdictional grounds and remanding for further proceedings).   

What is critical, however, is what happened after remand to the trial court. Mr. Reister fixed the jurisdictional problem (having challenged a criminal statute in a civil suit, rather than when being prosecuted) by joining the Dallas District Attorney as a party. And the lawsuit was resolved against the recipient of lawyer-originated direct mail on summary judgment. Shearer’s suit was dismissed.

Last time I looked into this, the trial court’s order entered in Attorney Reister’s favor on remand from the Dallas Court of Appeals was not even available on WestLaw. Nor can it, unlike the Fifth COA’s appellate opinion, be found on Google Scholar.

So, it is reasonable to assume that very few Texas lawyers, including staff attorneys and members of the courts of appeals, even know that it is okay to violate the 30-day solicitation black-out period in Dallas County, but not elsewhere in the State. And that it is quite likely that the same result could be procured in other venues, upon application of sufficient legal savvy and quality law firm muscle.  

The civil barratry statute has since been amended and no longer allows private parties to sue for being solicited by mail within 30 days of being sued. So civil suits like Shearer’s won’t be seen again. But the Penal Code still says it’s illegal.[3] Except it’s not illegal in Dallas County, because a state district court there has declared it unconstitutional and the Dallas District Attorney is bound by that ruling. At least for the benefit of Mr. Reister.   

C.                 The desire to make money is not an inherent wrong

The mens rea element of the offense of barratry is the motivation and intent to make money.[4] But as a general proposition, that is not in and of itself morally repugnant. Indeed, the desire to make money is a fundamental assumption of the free market economy, and in no way compels the conclusion that anyone is harmed.

It is entirely understandable that Mr. Reister did not like this law, but a law it was.

When sued in civil court for violating the barratry statute and facing a $10,000 statutory penalty (or bounty on the head of a lawyer who reached out to help a hapless consumer, depending on viewpoint), Mr. Reister not only “fessed up” voluntarily by admitting that he was violating the barratry law in the regular course of his business, he did so under oath, and he argued that not being able to violate this (unjust) law was interfering with his business and causing him to lose income. See Reister Affidavit in the Appendix at Tab A.   

Mr. Reister affirmatively used his own sworn admission as to violations he had committed intentionally and on a massive scale, to bolster his argument that the statute under which he was (at least in theory) incurring civil and criminal liability, should be declared invalid.

And he succeeded.

In sum, Mr. Reister ultimately prevailed in obtaining an injunction against the Dallas District Attorney precluding the enforcement of the law he had complained of after being sued for violating it.  

The bottom line here is that Mr. Reister’s concerns were accommodated by the judicial system for the benefit of Mr. Reister’s bottom line, but Mr. Reynolds is heading for jail, not having similarly been accommodated. His bottom line is not being padded. His bottom is getting tarred and feathered instead. He is being made a whipping boy. This smacks of disparate treatment under the law.    

D.                Why no constitutional challenge in this case?

It seems to me that Mr. Reynolds, too, should have challenged the constitutionality of the 31-day solicitation black-out statute that he was convicted of violating by proxy.

I have no idea why he did not do it. Perhaps he thinks he is better at denying and lying. The appellate opinion provides plenty of evidence of furtiveness.  I am sure Reynold’s failure to mount a constitutional challenge constitutes procedural waiver, and that this waiver therefore most likely precludes him from raising it for the first time on appeal.

But if incompetence in the handling of his own criminal defense as a pro se in the trial court is the worst he can be accused of, does he really deserve to go to jail for an entire year? Besides, his constituents love him. If that be the result of gerrymandering, rather than a widespread sense that he was not dealt with fairly, it can hardly be laid at his door, or at the doors of his constituents.   

PRAYER

Please reconsider your decision to affirm the Montgomery County jury trial conviction of Texas lawyer and Texas Representative Ronald Eugene Reynolds from Missouri City, and invite legal scholars and other would-be amici curiae with gravitas to weigh in on this issue, after handing down an order withdrawing the opinion affirming that judgment of conviction. 

The fact that Reynolds was tried and convicted in a county in which he did not even have an office is even more troubling considering the enforceability and constitutionality of the barratry/solicitation statute varies among counties within the State of Texas even though the state law of barratry and solicitation is one of general applicability, rather than just a local ordinance.   

Would Ron now “Rap-sheet” Reynolds have been convicted in Judge Moyé‘s court in Dallas, or would that statute of dubious merit wherein he got snared have been declared unconstitutional as applied to him, or even facially?

It is at least worth exploring this question a bit further, most suitably by a court sitting far away from Dallas, Fort Bend, Harris, and Montgomery Counties.

As are the wider ramifications for society and Texas lawyers, whether they be lions of the Bar with big portable books of business, and big ships steaming in on a regular basis carrying big hauls, or bottom-feeders subsisting on steady diet of debt suits, low-or-no-asset divorces, soft-tissue whip-lashes, and fender-benders.

               

Respectfully submitted,

Amicus Curiae in Support of Ronald E. Reynolds

  

---

[1] See BODA Interlocutory Order of Suspension of Ronald Eugene Reynolds, April 29, 2016, available at: https://static.texastribune.org/media/documents/Reynolds57004InterlSusp.pdf (visited 2/2/2018).

[2] 2012 version of Penal Code § 38.12(d)(2)(D), which prohibited an attorney from soliciting professional employment from a defendant in a civil suit unless the lawsuit in which the defendant was named had been on file for more than 31 days before the solicitation and which was incorporated by reference in the civil barratry statute. §38.12(d)(2)(D). 

The current version of the same provision has a different letter designation: (C) instead of (D):  

See Tex. Penal Code §38.12(d)(2)(C). 

(C)   concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;

Available at Texas Statutes Online at:

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.38.htm#38.12 (visited 2/2/2018). 

[3] Tex. Penal Code §38.12(d)(2)(C). 

[4] State v. Sandoval, 842 S.W.2d 782, 788 (Tex. App.-Corpus Christi 1992, pet. ref'd) ("The culpability required under the [barratry] statute is the intent `to obtain an economic benefit.'").

EXHIBIT A: REISTER AFFIDAVIT 

REGARDING LAW FIRM SOLICITATION PRACTICE 

EXCERPTS

EXHIBIT B: RON E. REYNOLDS CHARGING INSTRUMENT 

CURRENT VERSION OF TEXAS CRIMINAL 

BARRATRY AND SOLICITATION STATUTE 

TEXAS PENAL CODE SECTION 38.12 

Sec. 38.12.  BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT.  (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.

(b)  A person commits an offense if the person:

(1)  knowingly finances the commission of an offense under Subsection (a);

(2)  invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a);  or

(3)  is a professional who knowingly accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

(c)  It is an exception to prosecution under Subsection (a) or (b) that the person's conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

(d)  A person commits an offense if the person:

(1)  is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

(2)  with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person's employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:

(A)  concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;

(B)  concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;

(C)   concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;

(D)  is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;

(E)  involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

(F)  contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(e)  For purposes of Subsection (d)(2)(D), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person's relative.

(f)  An offense under Subsection (a) or (b) is a felony of the third degree.

(g)  Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.

(h)  An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).

(i)  Final conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1989, 71st Leg., ch. 866, Sec. 2, eff. Sept. 1, 1989;  Acts 1993, 73rd Leg., ch. 723, Sec. 2, eff. Sept. 1, 1993;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994;  Acts 1997, 75th Leg., ch. 750, Sec. 2, eff. Sept. 1, 1997.

Amended by: 

Acts 2009, 81st Leg., R.S., Ch. 1252 (H.B. 148), Sec. 1, eff. September 1, 2009.

Acts 2013, 83rd Leg., R.S., Ch. 315 (H.B. 1711), Sec. 3, eff. September 1, 2013.