By Wolens, Brimer, et al. H.B. No. 2506
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the offense of and punishment for barratry and to
1-3 certain solicitations regarding professional employment.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 38.01, Penal Code, is amended to read as
1-6 follows:
1-7 Sec. 38.01. Definitions. In this chapter:
1-8 (1) "Complaining witness" means the victim of a crime
1-9 or a person who signs a criminal complaint.
1-10 (2) "Custody" means detained or under arrest by a
1-11 peace officer or under restraint by a public servant pursuant to an
1-12 order of a court.
1-13 (3) "Escape" means unauthorized departure from custody
1-14 or failure to return to custody following temporary leave for a
1-15 specific purpose or limited period, but does not include a
1-16 violation of conditions of probation or parole.
1-17 (4) "Economic benefit" means anything reasonably
1-18 regarded as an economic gain or advantage, including accepting or
1-19 offering to accept employment for a fee, accepting or offering to
1-20 accept a fee, entering into a fee contract, or accepting or
1-21 agreeing to accept money or anything of value.
1-22 (5) "Finance" means to provide funds or capital or to
1-23 furnish with necessary funds <"Funeral establishment" means an
1-24 establishment licensed under Section 4, Chapter 251, Acts of the
2-1 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
2-2 Texas Civil Statutes)>.
2-3 (6) "Governmental function" includes any activity that
2-4 a public servant is lawfully authorized to undertake on behalf of
2-5 government.
2-6 (7) "Invest funds" means to commit money to earn a
2-7 financial return <"Hospital" means a general hospital or special
2-8 hospital as defined by Chapter 241, Health and Safety Code>.
2-9 (8) "Member of the family" means anyone related within
2-10 the third degree of consanguinity or affinity, as determined under
2-11 Article 5996h, Revised Statutes.
2-12 (9) "Official proceeding" means:
2-13 (A) a proceeding before a magistrate, court, or
2-14 grand jury of this state;
2-15 (B) a proceeding before the legislature or an
2-16 inquiry authorized by either house or any joint committee
2-17 established by a joint or concurrent resolution of the two houses
2-18 of the legislature or any committee or subcommittee of either house
2-19 of the legislature;
2-20 (C) a proceeding in which pursuant to lawful
2-21 authority a court orders attendance or the production of evidence;
2-22 or
2-23 (D) a proceeding that otherwise is made
2-24 expressly subject to this chapter.
2-25 (10) "Qualified nonprofit organization" means a
2-26 nonprofit organization that meets the following conditions:
2-27 (A) the primary purposes of the organization do
3-1 not include the rendition of legal services or education regarding
3-2 legal services;
3-3 (B) the recommending, furnishing, paying for, or
3-4 educating persons regarding legal services is incidental and
3-5 reasonably related to the primary purposes of the organization;
3-6 (C) the organization does not derive a financial
3-7 benefit from the rendition of legal services by a lawyer; and
3-8 (D) the person for whom the legal services are
3-9 rendered, and not the organization, is recognized as the client of
3-10 a lawyer.
3-11 (11) "Public media" means a telephone directory or
3-12 legal directory, newspaper or other periodical, billboard or other
3-13 sign, radio or television broadcast, recorded message the public
3-14 may access by dialing a telephone number, or a written
3-15 communication not prohibited by Section 38.12(d) of this code.
3-16 (12) <(11)> "Solicit employment" means to communicate
3-17 in person or by telephone or written communication with a
3-18 prospective client <claimant> or <defendant or with> a member of
3-19 the prospective client's <claimant's or defendant's> family
3-20 concerning a legal matter arising out of a particular occurrence or
3-21 event, or series of occurrences or events, or concerning an
3-22 existing legal problem of the prospective client, for the purpose
3-23 of providing legal representation to the prospective client, when
3-24 neither the person receiving the communication nor anyone acting on
3-25 that person's behalf has requested the communication. The term
3-26 does not include a communication initiated <communicating> by a
3-27 family member of the person receiving a communication, a
4-1 communication <communicating> by an attorney who has a prior or
4-2 existing attorney-client relationship with the person receiving the
4-3 communication, or communication by an attorney for <communicating
4-4 with> a qualified nonprofit organization with the organization's
4-5 members for the purpose of educating the organization's members to
4-6 understand the law, <laymen> to recognize legal problems, to make
4-7 intelligent selection of legal counsel, or to use available legal
4-8 services. The term does not include an advertisement by an
4-9 attorney through public media.
4-10 SECTION 2. Section 38.12, Penal Code, is amended to read as
4-11 follows:
4-12 Sec. 38.12. Barratry. (a) A person commits an offense if,
4-13 with intent to obtain an economic benefit, the person <for himself,
4-14 he>:
4-15 (1) knowingly institutes a suit or claim that the
4-16 person has not been authorized to pursue;
4-17 (2) solicits employment, either in person or by
4-18 telephone, for himself or for another;
4-19 (3) pays, gives, or advances or offers to pay, give,
4-20 or advance to a prospective client money or anything of value to
4-21 obtain legal representation from the prospective client;
4-22 (4) pays or gives or offers to pay or give a person
4-23 money or anything of value to solicit employment;
4-24 (5) pays or gives or offers to pay or give a family
4-25 member of a prospective client money or anything of value to
4-26 solicit employment; or
4-27 (6) accepts or agrees to accept money or anything of
5-1 value to solicit employment.
5-2 (b) A person commits an offense if the person:
5-3 (1) is an attorney, chiropractor, physician, surgeon,
5-4 or private investigator licensed to practice in this state or any
5-5 person licensed, certified, or registered by a health care
5-6 regulatory agency of this state; and
5-7 (2) knowingly:
5-8 (A) finances or invests funds the person knows
5-9 or believes are intended to further the commission of an offense
5-10 under Subsection (a) of this section; or
5-11 (B) accepts employment within the scope of the
5-12 person's license, registration, or certification that results from
5-13 the solicitation of employment in violation of Subsection (a) of
5-14 this section.
5-15 (c) It is an exception to prosecution under Subsection (a)
5-16 or (b) of this section that the person's conduct is authorized by
5-17 the Texas Disciplinary Rules of Professional Conduct or any rule of
5-18 court.
5-19 (d) A person commits an offense if the person:
5-20 (1) is an attorney, chiropractor, physician, surgeon,
5-21 or private investigator licensed to practice in this state or any
5-22 person licensed, certified, or registered by a health care
5-23 regulatory agency of this state; and
5-24 (2) with the intent to obtain professional employment
5-25 for himself or for another, sends or knowingly permits to be sent
5-26 to an individual who has not sought the person's employment, legal
5-27 representation, advice, or care a written communication that:
6-1 (A) concerns an action for personal injury or
6-2 wrongful death or otherwise relates to an accident or disaster
6-3 involving the person to whom the communication is addressed or a
6-4 relative of that person and that was mailed before the 31st day
6-5 after the date on which the accident or disaster occurred;
6-6 (B) concerns a specific matter and relates to
6-7 legal representation and the person knows or reasonably should know
6-8 that the person to whom the communication is directed is
6-9 represented by a lawyer in the matter;
6-10 (C) concerns an arrest of or issuance of a
6-11 summons to the person to whom the communication is addressed or a
6-12 relative of that person and that was mailed before the 31st day
6-13 after the date on which the arrest or issuance of the summons
6-14 occurred;
6-15 (D) concerns a lawsuit of any kind, including an
6-16 action for divorce, in which the person to whom the communication
6-17 is addressed is a defendant or a relative of that person, unless
6-18 the lawsuit in which the person is named as a defendant has been on
6-19 file for more than 31 days before the date on which the
6-20 communication was mailed;
6-21 (E) is sent or permitted to be sent by a person
6-22 who knows or reasonably should know that the injured person or
6-23 relative of the injured person has indicated a desire not to be
6-24 contacted by or receive communications concerning employment;
6-25 (F) involves coercion, duress, fraud,
6-26 overreaching, harassment, intimidation, or undue influence; or
6-27 (G) contains a false, fraudulent, misleading,
7-1 deceptive, or unfair statement or claim.
7-2 (e) For purposes of Subsection (d)(2)(E) of this section, a
7-3 desire not to be contacted is presumed if an accident report
7-4 reflects that such an indication has been made by an injured person
7-5 or that person's relative.
7-6 (f) An offense under Subsection (a) or (b) of this section
7-7 is a felony of the third degree.
7-8 (g) Except as provided by Subsection (h) of this section, an
7-9 offense under Subsection (d) of this section is a Class A
7-10 misdemeanor.
7-11 (h) An offense under Subsections (a), (b), or (d) of this
7-12 section is a felony of the third degree if it is shown on the trial
7-13 of the offense that the defendant has previously been convicted
7-14 under Subsections (a), (b), or (d) of this section.
7-15 <(1) institutes any suit or claim in which he knows he
7-16 has no interest;>
7-17 <(2) institutes any suit or claim that he knows is
7-18 false;>
7-19 <(3) solicits employment for himself or another to
7-20 prosecute or defend a suit or to collect a claim; or>
7-21 <(4) procures another to solicit for him or another
7-22 employment to prosecute or defend a suit or to collect a claim.>
7-23 <(b) Intent to obtain an economic benefit is presumed if the
7-24 person accepts employment for a fee, accepts a fee, or accepts or
7-25 agrees to accept money or any economic benefit.>
7-26 <(c) Except as provided by Subsection (d) of this section,
7-27 an offense under Subsection (a) of this section is a Class A
8-1 misdemeanor.>
8-2 <(d) An offense under Subsection (a)(3) or (a)(4) of this
8-3 section is a felony of the third degree if it is shown on the trial
8-4 of the offense that:>
8-5 <(1) the defendant has previously been convicted under
8-6 Subsection (a)(3) or (a)(4) of this section; and>
8-7 <(2) the solicitation is performed in whole or in
8-8 part:>
8-9 <(A) in a hospital, funeral establishment, or
8-10 public or private cemetery or at the scene of an accident;>
8-11 <(B) by using a person who is an employee of:>
8-12 <(i) this state;>
8-13 <(ii) a political subdivision of this
8-14 state, including a county, municipality, or special purpose
8-15 district or authority; or>
8-16 <(iii) a hospital or funeral
8-17 establishment; or>
8-18 <(C) by impersonating a clergyman, public
8-19 employee, or emergency assistance worker or volunteer.>
8-20 (i) <(e)> Final conviction of felony barratry is a serious
8-21 crime for all purposes and acts, specifically including the State
8-22 Bar Rules and the Texas Rules of Disciplinary Procedure.
8-23 SECTION 3. Section 45(a), Uniform Act Regulating Traffic on
8-24 Highways (Article 6701d, Vernon's Texas Civil Statutes), is amended
8-25 to read as follows:
8-26 (a) The department shall prepare and upon request supply to
8-27 police departments, coroners, sheriffs, garages, and other suitable
9-1 agencies or individuals, forms for accident reports required
9-2 hereunder, appropriate with respect to the persons required to make
9-3 such reports and the purposes to be served. The written reports to
9-4 be made by person involved in accidents and by investigating
9-5 officers shall call for sufficiently detailed information to
9-6 disclose with reference to a traffic accident the cause, conditions
9-7 then existing, and the persons and vehicle involved. Also, the
9-8 forms for the written reports shall include a means for designating
9-9 and identifying peace officers, fire fighters, and emergency
9-10 medical services employees who during an emergency are involved in
9-11 accidents while driving law enforcement vehicles, fire department
9-12 vehicles, or emergency medical services vehicles in pursuit of
9-13 their duties. The forms shall also contain a statement by the
9-14 peace officers, fire fighters, and emergency medical services
9-15 employees describing the nature of the emergency. The forms must
9-16 include a means of designating whether an individual involved in an
9-17 accident desires to be contacted by persons seeking to obtain
9-18 professional employment as a professional described by Section
9-19 38.12(b)(1), Penal Code. An individual's response as to whether
9-20 the individual desires to be contacted is not admissible evidence
9-21 in a civil trial.
9-22 SECTION 4. Chapter 81, Government Code, is amended by adding
9-23 Subchapter I to read as follows:
9-24 SUBCHAPTER I. INFORMATION CONCERNING LAWYER SERVICES
9-25 Sec. 81.201. DEFINITIONS. In this subchapter:
9-26 (1) "Committee" means the standing committee on
9-27 advertising of the state bar created under Section 81.205.
10-1 (2) "Dramatization" means to portray, recreate through
10-2 characterization with dialogue, or depict or attempt to depict a
10-3 vehicular collision, an accident, a victim's injury, or a lawyer's
10-4 legal success.
10-5 (3) "Lawyer referral service" means an individual, a
10-6 firm, a corporation, or other entity that meets the requirements of
10-7 Article 320d, Revised Statutes.
10-8 (4) "Public media" means a telephone directory or
10-9 legal directory, newspaper or other periodical, billboard or other
10-10 sign, radio or television broadcast, recorded message the public
10-11 may access by dialing a telephone number, or a written
10-12 communication not prohibited by Section 81.204(b).
10-13 (5) "Qualified nonprofit organization" means a
10-14 nonprofit organization that meets the following conditions:
10-15 (A) the primary purposes of the organization do
10-16 not include the rendition of legal services or education regarding
10-17 legal services;
10-18 (B) the recommending, furnishing, paying for, or
10-19 educating persons regarding legal services is incidental and
10-20 reasonably related to the primary purposes of the organization;
10-21 (C) the organization does not derive a financial
10-22 benefit from the rendition of legal services by a lawyer; and
10-23 (D) the person for whom the legal services are
10-24 rendered, and not the organization, is recognized as the client of
10-25 a lawyer.
10-26 (6) "Solicit employment" means to communicate in
10-27 person or by telephone or by written communication with a
11-1 prospective client or a member of the prospective client's family
11-2 concerning a legal matter arising out of a particular occurrence or
11-3 event, or series of occurrences or events, or concerning an
11-4 existing legal problem of the prospective client, for the purpose
11-5 of providing legal representation to the prospective client, when
11-6 neither the person receiving the communication nor anyone acting on
11-7 that person's behalf has requested the communication. The term
11-8 does not include a communication initiated by a family member of
11-9 the person receiving a communication, a communication by an
11-10 attorney who has a prior or existing attorney-client relationship
11-11 with the person receiving the communication, or a communication by
11-12 an attorney for a qualified nonprofit organization with the
11-13 organization's members for the purpose of educating the
11-14 organization's members to understand the law, to recognize legal
11-15 problems, to make intelligent selection of legal counsel, or to use
11-16 available legal services. The term does not include an
11-17 advertisement by an attorney through public media.
11-18 Sec. 81.202. COMMUNICATIONS CONCERNING LAWYER SERVICES. (a)
11-19 A lawyer may not make or permit to be made a false, misleading,
11-20 deceptive, or unfair communication about the lawyer or the lawyer's
11-21 services. A communication violates this section if it:
11-22 (1) contains a material misrepresentation of fact or
11-23 law or omits a fact necessary to make the statement considered as a
11-24 whole not materially misleading;
11-25 (2) is likely to create an unjustified expectation
11-26 about results the lawyer can achieve or states or implies that the
11-27 lawyer can achieve results by means that violate this subchapter,
12-1 the Texas Disciplinary Rules of Professional Conduct, or other law;
12-2 (3) compares the lawyer's services with other lawyers'
12-3 services, unless the comparison can be factually substantiated; or
12-4 (4) states or implies that the lawyer is able to
12-5 influence improperly or upon irrelevant grounds any tribunal,
12-6 legislative body, or public official.
12-7 (b) Any statement about fees must include the amount of the
12-8 fee, whether contingent or otherwise, and must state whether the
12-9 client may be obligated for all or some portion of the cost
12-10 involved.
12-11 Sec. 81.203. ADVERTISING. (a) A lawyer may, not
12-12 inconsistent with this subchapter, advertise legal services through
12-13 public media or through written communication not involving
12-14 solicitation as prohibited by Section 81.204.
12-15 (b) This subchapter does not apply to any advertisement
12-16 broadcast or disseminated in another jurisdiction in which the
12-17 advertising lawyer is admitted if the advertisement complies with
12-18 the rules governing lawyer advertising in that jurisdiction and is
12-19 not intended for broadcast or dissemination in this state.
12-20 (c) Advertisements broadcast on electronic media such as
12-21 television and radio may contain the same factual information and
12-22 illustrations as permitted in advertisements in print media. The
12-23 information must be articulated by spoken voices, with no sounds
12-24 of sirens, crashing vehicles, accidents, glass breaking, screeching
12-25 tires, horns honking, persons screaming or crying, or explosions.
12-26 If music is used as background for an advertisement, it must be
12-27 instrumental music. The voice may be that of the lawyer or a
13-1 regular employee of the firm whose services are advertised; it may
13-2 not be that of a celebrity whose voice is recognizable to the
13-3 public.
13-4 (d) All advertisements and written communications authorized
13-5 by this subchapter must include the name of at least one lawyer or
13-6 the lawyer referral service responsible for the content of the
13-7 advertisement.
13-8 (e) A dramatization may not be included in any advertisement
13-9 in any media.
13-10 (f) A statement or representation used in advertisements
13-11 must present information that may be factually substantiated and
13-12 may not state, suggest, or imply the professional superiority of a
13-13 lawyer or the performance of professional services by a lawyer in a
13-14 superior manner that is not readily subject to verification.
13-15 (g) An advertisement or written communication that indicates
13-16 one or more areas of law in which the lawyer or law firm practices
13-17 must conform to Section 81.207.
13-18 (h) The fact that a lawyer's services are provided on a
13-19 contingent fee basis may be disclosed if all expenses are also
13-20 contingent on a recovery, but any statement about fees must include
13-21 the amount of the fee, whether contingent or otherwise, and must
13-22 state whether the client may be obligated for all or some portion
13-23 of the costs involved. If the lawyer intends to hold the client
13-24 liable for expenses regardless of outcome, the lawyer must disclose
13-25 that fact. If specific percentages on a contingent fee contract
13-26 are referenced, the lawyer must disclose whether the percentage is
13-27 computed before or after expenses are deducted from the recovery.
14-1 (i) Except as provided by Subsection (j), a lawyer who
14-2 advertises a specific fee or range of fees for a particular service
14-3 shall honor the advertised fee or range of fees for at least 90
14-4 days unless the advertisement specifies a shorter period.
14-5 (j) For advertisements in the yellow pages of telephone
14-6 directories or other media not published more frequently than
14-7 annually, a lawyer shall honor the advertised fee or range of fees
14-8 for at least one year after publication.
14-9 (k) A lawyer may not advertise services under a name that
14-10 violates Section 81.208.
14-11 (l) An advertisement or written communication must disclose
14-12 the geographic location, by city or town, of the office in which
14-13 the lawyer who will actually perform the services advertised
14-14 principally practices law. If the office location is outside a
14-15 city or town, the county in which the office is located must be
14-16 disclosed. If more than one office location is advertised, each of
14-17 the locations must be staffed by a lawyer at least three days a
14-18 week.
14-19 (m) A lawyer may not, directly or indirectly, pay all or a
14-20 part of the cost of an advertisement by a lawyer not in the same
14-21 firm unless the advertisement discloses the name and address of the
14-22 nonadvertising lawyer, the relationship between the advertising
14-23 lawyer and the nonadvertising lawyer, and whether the advertising
14-24 lawyer may refer any case received through the advertisement to the
14-25 nonadvertising lawyer.
14-26 (n) The following information in an advertisement or written
14-27 communication may not be construed as a violation of Section
15-1 81.202:
15-2 (1) subject to this section and Section 81.208, the
15-3 name of the lawyer or law firm, a listing of lawyers associated
15-4 with the firm, office addresses and telephone numbers, office and
15-5 telephone service hours, and a designation such as "attorney" or
15-6 "law firm";
15-7 (2) the date of admission to the state bar and any
15-8 other bars and a listing of federal courts and jurisdictions other
15-9 than Texas in which the lawyer is licensed to practice;
15-10 (3) any technical and professional licenses granted by
15-11 this state or other recognized licensing authorities;
15-12 (4) any foreign language ability;
15-13 (5) the fields of law in which the lawyer is certified
15-14 or designated, subject to the requirements of Section 81.207;
15-15 (6) any prepaid or group legal service plans in which
15-16 the lawyer participates;
15-17 (7) the acceptance of credit cards;
15-18 (8) subject to Subsections (h), (i), and (j), the fee
15-19 for initial consultation and fee schedule; and
15-20 (9) a listing of the name and geographic location of a
15-21 lawyer or law firm as a sponsor of a public service announcement or
15-22 charitable, civic, or community program or event.
15-23 (o) This section does not prohibit a lawyer or law firm from
15-24 permitting the inclusion in law lists and law directories intended
15-25 primarily for the use of the legal profession of information that
15-26 traditionally has been included in these publications.
15-27 (p) All advertisements for a lawyer or law firm and all
16-1 written communications to a prospective client soliciting
16-2 professional employment must be reviewed and approved in writing by
16-3 the lawyer or a lawyer in the law firm.
16-4 (q) A copy or recording of an advertisement or a writing
16-5 soliciting professional employment shall be submitted to the
16-6 committee as provided by Section 81.206 and the lawyer shall
16-7 retain a copy or recording for four years after its last
16-8 dissemination along with a record of when and where it was used.
16-9 (r) A lawyer may not give or promise to give anything of
16-10 value to a prospective client or a layperson to obtain professional
16-11 employment. However, a lawyer may pay reasonable fees for
16-12 advertising and public relation services rendered in accordance
16-13 with this section and may pay usual charges and otherwise cooperate
16-14 with a lawyer referral service. This subsection does not preclude
16-15 a lawyer from negotiating with a prospective client the terms and
16-16 conditions of representation.
16-17 (s) A lawyer may not advertise an association with a lawyer
16-18 referral service or accept referrals from a lawyer referral service
16-19 unless the lawyer referral service meets the requirements of
16-20 Article 320d, Revised Statutes.
16-21 (t) A lawyer may not advertise as part of an advertising
16-22 cooperative or other joint venture comprised of two or more lawyers
16-23 not in the same law firm unless each advertisement:
16-24 (1) clearly states that the advertisement is paid for
16-25 by the cooperative lawyers;
16-26 (2) clearly names each of the cooperative lawyers;
16-27 (3) clearly states their principal office addresses;
17-1 (4) sets forth conspicuously the special competency
17-2 requirements of Section 81.207 for each lawyer with the
17-3 requirements observable by a prospective client for at least four
17-4 seconds per lawyer;
17-5 (5) does not state, suggest, or imply that the lawyers
17-6 participating in the advertising cooperative possess professional
17-7 superiority, are able to perform services in a superior manner, or
17-8 possess special competence in any area advertised unless with
17-9 regard to all areas advertised all lawyers participating have been
17-10 awarded a certificate of special competence by the Texas Board of
17-11 Legal Specialization or have been designated as possessing special
17-12 competence in an area advertised by an organization accredited by
17-13 the American Bar Association Accreditation of Speciality
17-14 Certification Program for Lawyers;
17-15 (6) the statements in the advertisement are readily
17-16 subject to verification; and
17-17 (7) the advertisement does not otherwise violate this
17-18 subchapter.
17-19 (u) Each lawyer who advertises as part of an advertising
17-20 cooperative or other joint venture is individually responsible for
17-21 complying with the filing requirements of Section 81.206 and shall
17-22 ensure that each cooperative advertisement does not violate this
17-23 subchapter.
17-24 Sec. 81.204. DIRECT CONTACT WITH PROSPECTIVE CLIENTS.
17-25 (a) A lawyer may not solicit professional employment in person, by
17-26 telephone, or by written communication in violation of this section
17-27 from a prospective client. A lawyer may not permit another person
18-1 to solicit employment in the lawyer's behalf. A lawyer may not
18-2 enter into an agreement for, charge for, or collect a fee for
18-3 professional employment obtained in violation of this section.
18-4 (b) A lawyer may not solicit professional employment by
18-5 sending or knowingly permitting to be sent on behalf of the lawyer,
18-6 the lawyer's firm, partner, or associate, or any other lawyer
18-7 affiliated with the lawyer or the lawyer's firm, a written
18-8 communication to a prospective client if:
18-9 (1) the communication concerns an action for personal
18-10 injury or wrongful death or otherwise relates to an accident or
18-11 disaster involving the person to whom the communication is
18-12 addressed or a relative of that person, unless the accident or
18-13 disaster occurred more than 31 days before the mailing of the
18-14 communication;
18-15 (2) the communication concerns a specific matter and
18-16 the lawyer knows or reasonably should have known that the person to
18-17 whom the communication is directed is represented by a lawyer in
18-18 the matter;
18-19 (3) the communication concerns an arrest of or
18-20 issuance of a summons to the person to whom the communication is
18-21 addressed or a relative of that person, unless the arrest of or
18-22 issuance of the summons to that person occurred more than 31 days
18-23 before the mailing of the communication;
18-24 (4) the communication concerns a lawsuit of any kind,
18-25 including an action for divorce, in which the person to whom the
18-26 communication is addressed is a defendant or a relative of that
18-27 person, unless the lawsuit in which the person is named as a
19-1 defendant has been on file for more than 31 days before the mailing
19-2 of the communication;
19-3 (5) the lawyer knows or reasonably should have known
19-4 that the injured person or relative of the injured person has
19-5 indicated a desire not to be contacted by or receive communications
19-6 concerning professional employment;
19-7 (6) the communication involves coercion, duress,
19-8 fraud, overreaching, harassment, intimidation, or undue influence;
19-9 (7) the communication contains a false, fraudulent,
19-10 misleading, deceptive, or unfair statement or claim; or
19-11 (8) the lawyer knows or reasonably should know that
19-12 the physical, emotional, or mental state of the person makes it
19-13 unlikely that the person would exercise reasonable judgment in
19-14 employing a lawyer.
19-15 (c) Written communications to prospective clients for the
19-16 purpose of obtaining professional employment are subject to
19-17 Subsections (d)-(m).
19-18 (d) Each page of a written communication shall be plainly
19-19 marked "ADVERTISEMENT" in red ink, and the lower left corner of the
19-20 face of the envelope containing a written communication must be
19-21 marked with a prominent red advertisement mark. If the written
19-22 communication is in the form of a self-mailing brochure or
19-23 pamphlet, the advertisement mark in red ink must appear on the
19-24 address panel of the brochure or pamphlet.
19-25 (e) A copy of each written communication and a sample of the
19-26 envelopes in which the communications are enclosed shall be filed
19-27 with the committee either before or concurrently with the mailing
20-1 of the communication to a prospective client, as provided by
20-2 Section 81.206. The lawyer shall retain a copy of each written
20-3 communication for four years.
20-4 (f) If written communications identical in content are sent
20-5 to two or more prospective clients, the lawyer may comply with
20-6 Subsection (e) by filing a single copy with a list of the names and
20-7 addresses of persons to whom the written communication was sent,
20-8 and by retaining the information in the manner required by
20-9 Subsection (e). If the lawyer periodically sends the identical
20-10 communication to additional prospective clients, lists of the
20-11 additional names and addresses shall be filed with the committee at
20-12 least monthly.
20-13 (g) A written communication mailed to a prospective client
20-14 shall be sent only by regular United States mail, not by registered
20-15 mail or any other form of restricted delivery.
20-16 (h) A reference may not be made in the communication as to
20-17 the communication having received any kind of approval from the
20-18 state bar.
20-19 (i) The first sentence of any written communication
20-20 concerning a specific matter shall be: "If you have already
20-21 retained a lawyer for this matter, please disregard this letter."
20-22 (j) A written communication shall be on letter-sized paper
20-23 rather than legal-sized paper and may not be made to resemble legal
20-24 pleadings or other legal documents. This subsection does not
20-25 prohibit the mailing of brochures and pamphlets.
20-26 (k) If a lawyer other than the lawyer whose name or
20-27 signature appears on the communication will actually handle the
21-1 case or matter, or if the case or matter will be referred to
21-2 another lawyer or law firm, any written communication concerning a
21-3 specific matter must include a statement advising the prospective
21-4 client of that fact.
21-5 (l) Any written communication prompted by a specific
21-6 occurrence involving or affecting the intended recipient of the
21-7 communication or a family member must disclose how the lawyer
21-8 obtained the information prompting the communication.
21-9 (m) A written communication to a prospective client may not
21-10 reveal on the envelope, or on the outside of a self-mailing
21-11 brochure or pamphlet, the nature of the prospective client's legal
21-12 problem.
21-13 Sec. 81.205. COMMITTEE ON ADVERTISING. (a) The standing
21-14 committee on advertising is created as a permanent committee of the
21-15 state bar. The committee is not subject to dissolution by the
21-16 board of directors under the state bar rules.
21-17 (b) The committee is composed of nine members. Six members
21-18 must be lawyers and at least two of those lawyer members must be
21-19 lawyers who advertise in electronic media. Three members may not
21-20 be lawyers.
21-21 (c) The president of the state bar, subject to the
21-22 concurrence of the board of directors, appoints the committee
21-23 members.
21-24 (d) Members serve staggered three-year terms with one-third
21-25 of the members' terms expiring each year.
21-26 (e) The president of the state bar shall designate a member
21-27 as chairperson of the committee who serves for one year.
22-1 (f) The committee shall:
22-2 (1) administer this subchapter;
22-3 (2) recommend to the executive director the hiring of
22-4 staff and other support personnel to evaluate lawyer advertising in
22-5 accordance with this subchapter;
22-6 (3) recommend to the board of directors the adoption
22-7 of additional rules or regulations concerning lawyer advertising;
22-8 (4) recommend to the board of directors educational
22-9 programs on advertising and legal ethics as the committee considers
22-10 advisable;
22-11 (5) recommend to the board of directors an annual
22-12 budget for the operation of the committee;
22-13 (6) recommend to the board of directors the amount of
22-14 any fees to be charged for filings under this subchapter;
22-15 (7) file inquiries alleging professional misconduct by
22-16 a lawyer or violation of this subchapter with the chief
22-17 disciplinary counsel;
22-18 (8) provide statistics and reports on advertising by
22-19 lawyers on an annual basis to the supreme court, the board of
22-20 directors, the governor, the lieutenant governor, and the speaker
22-21 of the house of representatives; and
22-22 (9) maintain records concerning all filings made under
22-23 this subchapter, the committee's findings, and any recommendations
22-24 made to the chief disciplinary counsel concerning alleged
22-25 professional misconduct or violation of this subchapter.
22-26 Sec. 81.206. EVALUATION OF ADVERTISEMENT. (a) A lawyer may
22-27 obtain an advisory opinion concerning the compliance of a
23-1 contemplated advertisement or written communication with this
23-2 subchapter in advance of disseminating the advertisement or
23-3 communication by submitting the material and the fee required by
23-4 Subsection (d) to the committee not later than the 21st day before
23-5 the date of dissemination. If the committee finds that the
23-6 advertisement complies with this subchapter, the lawyer's voluntary
23-7 submission satisfies the filing requirement in Subsection (b).
23-8 (b) Except as provided by Subsection (c), any lawyer who
23-9 advertises services through any public media or through written
23-10 communication not involving solicitation as prohibited by Section
23-11 81.204 shall file a copy of each advertisement with the committee
23-12 for evaluation of compliance with this subchapter. The copy shall
23-13 be filed either before or concurrently with the lawyer's first
23-14 dissemination of the advertisement or written communication and
23-15 shall be accompanied by the information and fee required by
23-16 Subsection (d).
23-17 (c) The following are exempt from the filing requirements of
23-18 Subsection (b):
23-19 (1) any advertisement in any public media that does
23-20 not contain illustrations or information other than that authorized
23-21 by Sections 81.203(n)(1)-(9);
23-22 (2) a brief announcement in any public media that
23-23 identifies a lawyer or law firm as a contributor to a specified
23-24 charity or as a sponsor of a specified charitable, community, or
23-25 public interest program, activity, or event if the announcement
23-26 does not contain information about the lawyer or law firm other
23-27 than name, the city where the law offices are located, and the fact
24-1 of the sponsorship or contribution;
24-2 (3) a listing or entry in a law list;
24-3 (4) a newsletter mailed only to:
24-4 (A) existing or former clients;
24-5 (B) other lawyers or professionals;
24-6 (C) members of a qualified non-profit
24-7 organization by an attorney for the organization; or
24-8 (D) persons who have previously sought the
24-9 lawyer's advice; and
24-10 (5) professional announcement cards stating new or
24-11 changed associations, new offices, and similar changes relating to
24-12 a lawyer or law firm.
24-13 (d) A filing with the committee as required by Subsection
24-14 (b) or as permitted by Subsection (a) must consist of:
24-15 (1) either:
24-16 (A) a copy of the advertisement or communication
24-17 in the form or forms in which it is to be disseminated, for
24-18 example, videotapes, audiotapes, print copy, or photographs of
24-19 outdoor advertising; or
24-20 (B) a production script of the advertisement
24-21 setting forth all words stated and printed in the advertisement
24-22 with a detailed description of all scenes, including actor
24-23 appearances and movements, and identifying the background music;
24-24 (2) a statement of when and where the advertisement or
24-25 communication will be used; and
24-26 (3) a check or money order payable to the state bar in
24-27 the amount of the fee set by the board of directors.
25-1 (e) The board of directors shall set a reasonable filing fee
25-2 each year for evaluating advertisements and written communications
25-3 as required by this subchapter. The board of directors shall
25-4 submit the fee to the supreme court for approval with the board's
25-5 proposed budget. The board shall set the fee in the amount
25-6 necessary to cover only:
25-7 (1) costs incurred by the committee and its staff in
25-8 evaluating and reviewing advertisements and written communications;
25-9 and
25-10 (2) costs for related purposes of enforcing this
25-11 subchapter.
25-12 (f) The committee shall evaluate all advertisements and
25-13 written communications filed with it under this subchapter for
25-14 compliance with this subchapter. Except as otherwise provided by
25-15 this subsection, the committee shall complete its evaluation not
25-16 later than the 21st day after the date of receipt of a filing
25-17 unless the committee determines that there is reasonable doubt that
25-18 the advertisement or written communication complies with this
25-19 subchapter and that further examination is warranted and cannot be
25-20 completed within the 21-day period, and advises the lawyer within
25-21 the 21-day period. If the committee requires the further
25-22 examination, the committee shall complete its review as promptly as
25-23 the circumstances reasonably allow. If the committee does not send
25-24 any communication to the lawyer within the 21-day period, the
25-25 advertisement is considered approved.
25-26 (g) If requested by the committee, the filing lawyer shall
25-27 submit information to substantiate statements or representations
26-1 made or implied in the lawyer's advertisement or written
26-2 communication.
26-3 (h) If the committee determines that an advertisement or
26-4 written communication does not comply with this subchapter, the
26-5 committee shall identify the manner in which the advertisement or
26-6 written communication does not comply with this subchapter and
26-7 shall advise the lawyer that dissemination or continued
26-8 dissemination of the advertisement or written communication may
26-9 result in professional discipline.
26-10 (i) A finding by the committee of either compliance or
26-11 noncompliance is not binding in a grievance proceeding but may be
26-12 offered as evidence.
26-13 (j) If a change of circumstances occurring subsequent to the
26-14 committee's evaluation of an advertisement or written communication
26-15 raises a substantial possibility that the advertisement or written
26-16 communication has become false or misleading as a result of the
26-17 change in circumstances, the lawyer shall promptly refile the
26-18 advertisement or a modified advertisement or written communication
26-19 with the committee with an explanation of the change in
26-20 circumstances and a reasonable fee set by the board of directors.
26-21 Sec. 81.207. COMMUNICATION OF FIELD OF PRACTICE. (a)
26-22 Except as provided by this section, a lawyer may not communicate
26-23 the fact that the lawyer is a specialist.
26-24 (b) A lawyer admitted to engage in patent practice before
26-25 the United States patent and trademark office may use the
26-26 designation "patents," "patent attorney," "patent lawyer," or any
26-27 combination of those terms. A lawyer engaged in trademark practice
27-1 may use the designation "trademark," "trademark attorney,"
27-2 "trademark lawyer," or any combination of those terms. A lawyer
27-3 engaged in patent and trademark practice may hold himself out as
27-4 specializing in "intellectual property law," "patents, trademarks,
27-5 and related matters," or "patent, trademark, copyright law, and
27-6 unfair competition," or a combination of those terms.
27-7 (c) A lawyer who has been awarded a certificate of special
27-8 competence by the Texas Board of Legal Specialization in an area
27-9 advertised shall state with respect to each area, "board certified
27-10 (area of specialization)--Texas Board of Legal Specialization."
27-11 (d) A lawyer who has been designated as possessing special
27-12 competence in an area advertised by an organization accredited by
27-13 the American Bar Association Accreditation of Speciality
27-14 Certification Program for Lawyers may state with respect to each
27-15 area, "board-certified (area of specialization)--(name of
27-16 organization)."
27-17 (e) A lawyer who has not been awarded a certificate of
27-18 special competence by the Texas Board of Legal Specialization in an
27-19 area advertised shall state with respect to each area, "not
27-20 certified by the Texas Board of Legal Specialization." If the area
27-21 of law advertised has not been designated as an area in which a
27-22 lawyer may be awarded a certificate of special competency by the
27-23 Texas Board of Legal Specialization, the lawyer may also state with
27-24 regard to that area, "no designation has been made by the Texas
27-25 Board of Legal Specialization for a certificate of special
27-26 competence in this area."
27-27 (f) The statements referred to in Subsections (c), (d), and
28-1 (e) shall be displayed conspicuously with no abbreviations or
28-2 changes in the language set forth in those subsections, and those
28-3 statements must be separate and apart from any other statements so
28-4 as to be easily seen or understood by the ordinary consumer.
28-5 Sec. 81.208. FIRM NAMES AND LETTERHEADS. (a) A lawyer may
28-6 not use a firm name, letterhead, or other professional designation
28-7 that violates Section 81.202.
28-8 (b) A lawyer in private practice may not practice under a
28-9 trade name, a name that is misleading as to the identity of the
28-10 lawyer or lawyers practicing under the name, or a firm name
28-11 containing names other than those of one or more of the lawyers in
28-12 the firm, except that the names of a professional corporation or
28-13 professional association may contain "P.C.," "P.A.," "L.L.P.,"
28-14 "L.L.C.," or similar symbols indicating the nature of the
28-15 organization. If otherwise lawful a firm may use as or continue to
28-16 include in its name the name or names of one or more deceased or
28-17 retired members of the firm or of a predecessor firm in a
28-18 continuing line of succession. This subsection does not prohibit a
28-19 married woman from practicing under her maiden name.
28-20 (c) A lawyer may not advertise under a trade or fictitious
28-21 name, except that a lawyer who actually practices under a trade
28-22 name as authorized by Subsection (b) may use that name in an
28-23 advertisement. A lawyer who advertises under a trade or fictitious
28-24 name violates this subsection unless the same name is the law firm
28-25 name that appears on the lawyer's letterhead, business cards,
28-26 office sign, fee contracts, and with the lawyer's signature on
28-27 pleadings and other legal documents.
29-1 (d) A law firm with offices in more than one jurisdiction
29-2 may use the same name in each jurisdiction, but identification of
29-3 the lawyers in an office of the firm must indicate the
29-4 jurisdictional limitations on those not licensed to practice in the
29-5 jurisdiction in which the office is located.
29-6 (e) The name of a lawyer occupying a judicial, legislative,
29-7 or public executive or administrative position may not be used in
29-8 the name of a law firm, or in communication on its behalf, during
29-9 any substantial period in which the lawyer is not actively and
29-10 regularly practicing with the firm.
29-11 (f) A lawyer may not state or imply that the lawyer
29-12 practices in a partnership or other organization unless the lawyer
29-13 does practice in a partnership or other organization.
29-14 Sec. 81.209. CONTRACTS. A contract of employment entered
29-15 into by a lawyer in violation of Section 38.12, Penal Code, is
29-16 void.
29-17 SECTION 5. (a) The change in law made by Sections 1 and 2
29-18 of this Act applies only to an offense committed on or after the
29-19 effective date of this Act. For purposes of this section, an
29-20 offense is committed before the effective date of this Act if any
29-21 element of the offense occurs before that date.
29-22 (b) An offense committed before the effective date of this
29-23 Act is covered by the law in effect when the offense was committed,
29-24 and the former law is continued in effect for this purpose.
29-25 SECTION 6. Subchapter I, Chapter 81, Government Code, as
29-26 added by this Act, applies only to communications made or contracts
29-27 entered into on or after the effective date of this Act.
30-1 SECTION 7. This Act takes effect January 1, 1994.
30-2 SECTION 8. The importance of this legislation and the
30-3 crowded condition of the calendars in both houses create an
30-4 emergency and an imperative public necessity that the
30-5 constitutional rule requiring bills to be read on three several
30-6 days in each house be suspended, and this rule is hereby suspended.