Could Legislation Help Prevent Illegal Solicitation of Personal Injury Victims?

We’re ambulance chasers — at least that’s what the public thinks.  Personal injury lawyers have a reputation for sitting around and trying to chase down injured people so we can represent them in cases.

And sadly, there’s some truth to that. 

There are a number of personal injury attorneys around the state that improperly obtain clients — either by acting themselves, using chiropractors, or using other “case runners” that contact the injured and direct them to attorneys.

But in reality, most of us oppose it and find it despicable.

In truth, Texas law and the disciplinary rules governing lawyers limit how attorneys can contact potential clients.  These are called barratry laws. But they lacked some teeth in their enforcement.  That may have changed.

Yesterday, the governor signed in a new law that adds additional penalties to the statutes limiting barratry.  Under the new statute, a lawyer who improperly solicits clients can be subject to fee forfeiture — that means that they could have to give back any fees they obtain from an improperly obtained case.  Additionally, any person that engages in barratry could be fined up to $10,000.00.  This is important because it might provide some deterrence to case runners.  Fee forfeiture is a good incentive against a lawyer, but it doesn’t do anything to dissuade case runners or chiropractors from acting improperly.  This new penalty might provide some deterrence.

There are a couple interesting things to watch with this law.  Obviously, the important thing to watch is whether it limits case running and barratry in the personal injury arena.  But a second, and perhaps more interesting question, is whether its enforcement will only be limited to the personal injury context.  While most of the anecdotal stories involve the personal injury arena, many big firms around the state use fancy monitoring software to watch and determine when potential clients are being sued.  In fact, there’s a fairly famous video where a plaintiff’s lawyer confronts Joe Nixon, a lawyer and former state legislator who was instrumental in passing tort reform litigation, for calling a potential client about hiring him  (unfortunately, the video doesn’t start until just after the alleged admission of barratry).

Barratry, Solicitation and More: The Harassment of Accident Victims

ambulanceThe image that 90% of the population has of those of us that are personal injury lawyers is of some greedy jerk using deception or illegal tactics to pursue claims. For most of my brethren, that caricature couldn’t be further from the truth. But for some attorneys, it’s accurate, and it couldn’t be more disgusting.

Earlier this week, the San Antonio Express News ran an article detailing the problem of barratry or case solicitation. As it stands, barratry is illegal. Texas attorneys are not allowed to solicit clients in person or by phone, and an attorney can’t solicit by mail until thirty-one days after the date of the accident or wreck. Tex. Penal Code § 38.12. But it happens over and over, and we need to do what we can to stop it.

But the harassment of victims doesn’t stop at lawyers. Another problem is chiropractors soliciting car wreck victims and then referring the victims to their selected attorneys. We’ve previously written on a WOAI undercover operation to bust attorneys trying this stunt. That scheme is also illegal, but it too continues.

It’s about time that we did something about it. Lawmakers need to step in, attorneys need to step in by reporting suspected cases of barratry, and injured persons that are solicited need to report their own experiences. Maybe then, we can do something about this horrible practice. (Let me add that the article hints that the Texas Trial Lawyers Association may be against the bill. I’m proud to be an active member of TTLA — one of the only organizations over at the capital trying to protect individuals’ rights. And I’ve spent time over at the capital this session on behalf of TTLA. I would be shocked if TTLA opposed this bill. In fact, the article even notes that TTLA is supporting a bill that would increase the penalties assessed against an attorney for not reporting barratry. It makes no sense to support one and not the other.)

But the harassment comes from the other side as well. A recurring problem in some litigation is a “swoop and settle” tactic employed by insurance companies who come in and settle claims early before the injured persons know the true extent of their injuries and the nature of their rights. And in many cases, the insurance company officials not only don’t explain the nature of the settlements, but they make out-right misrepresentations about the injured person’s ability to bring future claims. These problems are equally as bad as attorney solicitation. Unfortunately, there doesn’t seem to be any movement at all to try and remedy those problems. My only advice is to make sure you know your rights before you settle. While some settlement agreements may be set aside for fraud or other claims, pursuing the suit and the claim becomes much more difficult all the way around once the client signs an early settlement “agreement.”

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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