73R8079 RJA-F
By Wolens, Brimer, et al. H.B. No. 2506
Substitute the following for H.B. No. 2506:
By Combs C.S.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 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 obtaining employment from or providing legal representation to
3-24 the prospective client or the purpose of providing advice or care
3-25 to the prospective client, when neither the person receiving the
3-26 communication nor anyone acting on that person's behalf has
3-27 requested the communication. The term does not include a
4-1 communication initiated <communicating> by a family member of the
4-2 person receiving a communication, a communication <communicating>
4-3 by an attorney who has a prior or existing attorney-client
4-4 relationship with the person receiving the communication, or
4-5 communication by an attorney for <communicating with> a qualified
4-6 nonprofit organization with the organization's members for the
4-7 purpose of educating the organization's members to understand the
4-8 law, <laymen> to recognize legal problems, to make intelligent
4-9 selection of legal counsel, or to use available legal services.
4-10 The term does not include an advertisement by an attorney through
4-11 public media.
4-12 SECTION 2. Section 38.12, Penal Code, is amended to read as
4-13 follows:
4-14 Sec. 38.12. Barratry. (a) A person commits an offense if,
4-15 with intent to obtain an economic benefit the person <for himself,
4-16 he>:
4-17 (1) knowingly institutes a suit or claim that the
4-18 person has not been authorized to pursue;
4-19 (2) solicits employment, either in person or by
4-20 telephone, for himself or for another;
4-21 (3) pays, gives or advances or offers to pay, give or
4-22 advance to a prospective client money or anything of value to
4-23 obtain legal representation from the prospective client;
4-24 (4) pays or gives or offers to pay or give a person
4-25 money or anything of value to solicit employment;
4-26 (5) pays or gives or offers to pay or give a family
4-27 member of a prospective client money or anything of value to
5-1 solicit employment; or
5-2 (6) accepts or agrees to accept money or anything of
5-3 value to solicit employment.
5-4 (b) A person commits an offense if the person:
5-5 (1) is an attorney, chiropractor, physician, surgeon,
5-6 or private investigator licensed to practice in this state or any
5-7 person licensed, certified, or registered by a health care
5-8 regulatory agency of this state; and
5-9 (2) knowingly:
5-10 (A) finances or invests funds the person knows
5-11 or believes are intended to further the commission of an offense
5-12 under Subsection (a) of this section; or
5-13 (B) accepts employment within the scope of the
5-14 person's license, registration, or certification that results from
5-15 the solicitation of employment in violation of Subsection (a) of
5-16 this section.
5-17 (c) It is an exception to prosecution under Subsection (a)
5-18 or (b) of this section that the person's conduct is authorized by
5-19 the Texas Disciplinary Rules of Professional Conduct or any rule of
5-20 court.
5-21 (d) A person commits an offense if the person:
5-22 (1) is an attorney, chiropractor, physician, surgeon,
5-23 or private investigator licensed to practice in this state or any
5-24 person licensed, certified, or registered by a health care
5-25 regulatory agency of this state; and
5-26 (2) with the intent to obtain professional employment
5-27 for himself or for another, sends or knowingly permits to be sent
6-1 to an individual who has not sought the person's employment, legal
6-2 representation, advice, or care a written communication that:
6-3 (A) concerns an action for personal injury or
6-4 wrongful death or otherwise relates to an accident or disaster
6-5 involving the person to whom the communication is addressed or a
6-6 relative of that person and that was mailed before the 31st day
6-7 after the date on which the accident or disaster occurred;
6-8 (B) concerns a specific matter and relates to
6-9 legal representation and the person knows or reasonably should know
6-10 that the person to whom the communication is directed is
6-11 represented by a lawyer in the matter;
6-12 (C) concerns an arrest of or issuance of a
6-13 summons to the person to whom the communication is addressed or a
6-14 relative of that person and that was mailed before the 31st day
6-15 after the date on which the arrest or issuance of the summons
6-16 occurred;
6-17 (D) concerns a lawsuit of any kind, including an
6-18 action for divorce, in which the person to whom the communication
6-19 is addressed is a defendant or a relative of that person, unless
6-20 the lawsuit in which the person is named as a defendant has been on
6-21 file for more than 31 days before the date on which the
6-22 communication was mailed;
6-23 (E) is sent or permitted to be sent by a person
6-24 who knows or reasonably should know that the injured person or
6-25 relative of the injured person has indicated a desire not to be
6-26 contacted by or receive communications concerning employment;
6-27 (F) involves coercion, duress, fraud,
7-1 overreaching, harassment, intimidation, or undue influence; or
7-2 (G) contains a false, fraudulent, misleading,
7-3 deceptive, or unfair statement or claim.
7-4 (e) For purposes of Subsection (d)(2)(E) of this section, a
7-5 desire not to be contacted is presumed if an accident report
7-6 reflects that such an indication has been made by an injured person
7-7 or that person's relative.
7-8 (f) An offense under Subsection (a) or (b) of this section
7-9 is a felony of the third degree.
7-10 (g) Except as provided by Subsection (h) of this section, an
7-11 offense under Subsection (d) of this section is a Class A
7-12 misdemeanor.
7-13 (h) An offense under Subsection (d) of this section is a
7-14 felony of the third degree if it is shown on the trial of the
7-15 offense that the defendant has previously been convicted under
7-16 Subsection (d) of this section.
7-17 <(1) institutes any suit or claim in which he knows he
7-18 has no interest;>
7-19 <(2) institutes any suit or claim that he knows is
7-20 false;>
7-21 <(3) solicits employment for himself or another to
7-22 prosecute or defend a suit or to collect a claim; or>
7-23 <(4) procures another to solicit for him or another
7-24 employment to prosecute or defend a suit or to collect a claim.>
7-25 <(b) Intent to obtain an economic benefit is presumed if the
7-26 person accepts employment for a fee, accepts a fee, or accepts or
7-27 agrees to accept money or any economic benefit.>
8-1 <(c) Except as provided by Subsection (d) of this section,
8-2 an offense under Subsection (a) of this section is a Class A
8-3 misdemeanor.>
8-4 <(d) An offense under Subsection (a)(3) or (a)(4) of this
8-5 section is a felony of the third degree if it is shown on the trial
8-6 of the offense that:>
8-7 <(1) the defendant has previously been convicted under
8-8 Subsection (a)(3) or (a)(4) of this section; and>
8-9 <(2) the solicitation is performed in whole or in
8-10 part:>
8-11 <(A) in a hospital, funeral establishment, or
8-12 public or private cemetery or at the scene of an accident;>
8-13 <(B) by using a person who is an employee of:>
8-14 <(i) this state;>
8-15 <(ii) a political subdivision of this
8-16 state, including a county, municipality, or special purpose
8-17 district or authority; or>
8-18 <(iii) a hospital or funeral
8-19 establishment; or>
8-20 <(C) by impersonating a clergyman, public
8-21 employee, or emergency assistance worker or volunteer.>
8-22 (i) <(e)> Final conviction of felony barratry is a serious
8-23 crime for all purposes and acts, specifically including the State
8-24 Bar Rules and the Texas Rules of Disciplinary Procedure.
8-25 SECTION 3. Section 45(a), Uniform Act Regulating Traffic on
8-26 Highways (Article 6701d, Vernon's Texas Civil Statutes), is amended
8-27 to read as follows:
9-1 (a) The department shall prepare and upon request supply to
9-2 police departments, coroners, sheriffs, garages, and other suitable
9-3 agencies or individuals, forms for accident reports required
9-4 hereunder, appropriate with respect to the persons required to make
9-5 such reports and the purposes to be served. The written reports to
9-6 be made by person involved in accidents and by investigating
9-7 officers shall call for sufficiently detailed information to
9-8 disclose with reference to a traffic accident the cause, conditions
9-9 then existing, and the persons and vehicle involved. Also, the
9-10 forms for the written reports shall include a means for designating
9-11 and identifying peace officers, fire fighters, and emergency
9-12 medical services employees who during an emergency are involved in
9-13 accidents while driving law enforcement vehicles, fire department
9-14 vehicles, or emergency medical services vehicles in pursuit of
9-15 their duties. The forms shall also contain a statement by the
9-16 peace officers, fire fighters, and emergency medical services
9-17 employees describing the nature of the emergency. The forms must
9-18 include a means of designating whether an individual involved in an
9-19 accident desires to be contacted by persons seeking to obtain
9-20 professional employment as a professional described by Section
9-21 38.12(b)(1), Penal Code. An individual's response as to whether
9-22 the individual desires to be contacted is not admissible evidence
9-23 in a civil trial.
9-24 SECTION 4. Chapter 81, Government Code, is amended by adding
9-25 Subchapter I to read as follows:
9-26 SUBCHAPTER I. INFORMATION CONCERNING LAWYER SERVICES
9-27 Sec. 81.201. DEFINITIONS. In this subchapter:
10-1 (1) "Committee" means the standing committee on
10-2 advertising of the state bar created under Section 81.205.
10-3 (2) "Dramatization" means to portray, recreate through
10-4 characterization with dialogue, or depict or attempt to depict a
10-5 vehicular collision, an accident, a victim's injury, or a lawyer's
10-6 legal success.
10-7 (3) "Lawyer referral service" means an individual, a
10-8 firm, a corporation, or other entity that meets the requirements of
10-9 Article 320d, Revised Statutes.
10-10 (4) "Public media" means a telephone directory or
10-11 legal directory, newspaper or other periodical, billboard or other
10-12 sign, radio or television broadcast, recorded message the public
10-13 may access by dialing a telephone number, or a written
10-14 communication not prohibited by Section 38.12(d) of this code.
10-15 (5) "Qualified nonprofit organization" means a
10-16 nonprofit organization that meets the following conditions:
10-17 (A) the primary purposes of the organization do
10-18 not include the rendition of legal services or education regarding
10-19 legal services;
10-20 (B) the recommending, furnishing, paying for, or
10-21 educating persons regarding legal services is incidental and
10-22 reasonably related to the primary purposes of the organization;
10-23 (C) the organization does not derive a financial
10-24 benefit from the rendition of legal services by a lawyer; and
10-25 (D) the person for whom the legal services are
10-26 rendered, and not the organization, is recognized as the client of
10-27 a lawyer.
11-1 (6) "Solicit employment" means to communicate in
11-2 person or by telephone or written communication with a prospective
11-3 client or a member of the prospective client's family concerning a
11-4 matter arising out of a particular occurrence or event, or series
11-5 of occurrences or events, or concerning an existing legal problem
11-6 of the prospective client, for the purpose of obtaining employment
11-7 from or providing legal representation to the prospective client or
11-8 the purpose of providing advice or care to the prospective client,
11-9 when neither the person receiving the communication nor anyone
11-10 acting on that person's behalf has requested the communication.
11-11 The term does not include a communication initiated by a family
11-12 member of the person receiving a communication, a communication by
11-13 an attorney who has a prior or existing attorney-client
11-14 relationship with the person receiving the communication, or
11-15 communication by an attorney for a qualified nonprofit organization
11-16 with the organization's members for the purpose of educating the
11-17 organization's members to understand the law, to recognize legal
11-18 problems, to make intelligent selection of legal counsel, or to use
11-19 available legal services. The term does not include an
11-20 advertisement by an attorney through public media.
11-21 Sec. 81.202. COMMUNICATIONS CONCERNING LAWYER SERVICES. (a)
11-22 A lawyer may not make or permit to be made a false, misleading,
11-23 deceptive, or unfair communication about the lawyer or the lawyer's
11-24 services. A communication violates this section if it:
11-25 (1) contains a material misrepresentation of fact or
11-26 law or omits a fact necessary to make the statement considered as a
11-27 whole not materially misleading;
12-1 (2) is likely to create an unjustified expectation
12-2 about results the lawyer can achieve or states or implies that the
12-3 lawyer can achieve results by means that violate this subchapter,
12-4 the Texas Disciplinary Rules of Professional Conduct, or other law;
12-5 (3) compares the lawyer's services with other lawyers'
12-6 services, unless the comparison can be factually substantiated; or
12-7 (4) states or implies that the lawyer is able to
12-8 influence improperly or upon irrelevant grounds any tribunal,
12-9 legislative body, or public official.
12-10 (b) Any statement about fees must include the amount of the
12-11 fee, whether contingent or otherwise, and must state whether the
12-12 client may be obligated for all or some portion of the cost
12-13 involved.
12-14 Sec. 81.203. ADVERTISING. (a) A lawyer may, not
12-15 inconsistent with this subchapter, advertise legal services through
12-16 public media or through written communication not involving
12-17 solicitation as prohibited by Section 81.204.
12-18 (b) This subchapter does not apply to any advertisement
12-19 broadcast or disseminated in another jurisdiction in which the
12-20 advertising lawyer is admitted if the advertisement complies with
12-21 the rules governing lawyer advertising in that jurisdiction and is
12-22 not intended for broadcast or dissemination in this state.
12-23 (c) Advertisements broadcast on electronic media such as
12-24 television and radio may contain the same factual information and
12-25 illustrations as permitted in advertisements in print media. The
12-26 information must be articulated by spoken voices, with no sounds
12-27 of sirens, crashing vehicles, accidents, glass breaking, screeching
13-1 tires, horns honking, persons screaming or crying, or explosions.
13-2 If music is used as background for an advertisement, it must be
13-3 instrumental music. The voice may be that of the lawyer or a
13-4 regular employee of the firm whose services are advertised; it may
13-5 not be that of a celebrity whose voice is recognizable to the
13-6 public.
13-7 (d) All advertisements and written communications authorized
13-8 by this subchapter must include the name of at least one lawyer or
13-9 the lawyer referral service responsible for the content of the
13-10 advertisement.
13-11 (e) A dramatization may not be included in any advertisement
13-12 in any media.
13-13 (f) A statement or representation used in advertisements
13-14 must present information that may be factually substantiated and
13-15 may not state, suggest, or imply the professional superiority of a
13-16 lawyer or the performance of professional services by a lawyer in a
13-17 superior manner that is not readily subject to verification.
13-18 (g) An advertisement or written communication that indicates
13-19 one or more areas of law in which the lawyer or law firm practices
13-20 must conform to Section 81.207.
13-21 (h) The fact that a lawyer's services are provided on a
13-22 contingent fee basis may be disclosed if all expenses are also
13-23 contingent on a recovery, but any statement about fees must include
13-24 the amount of the fee, whether contingent or otherwise, and must
13-25 state whether the client may be obligated for all or some portion
13-26 of the costs involved. If the lawyer intends to hold the client
13-27 liable for expenses regardless of outcome, the lawyer must disclose
14-1 that fact. If specific percentages on a contingent fee contract
14-2 are referenced, the lawyer must disclose whether the percentage is
14-3 computed before or after expenses are deducted from the recovery.
14-4 (i) Except as provided by Subsection (j), a lawyer who
14-5 advertises a specific fee or range of fees for a particular service
14-6 shall honor the advertised fee or range of fees for at least 90
14-7 days unless the advertisement specifies a shorter period.
14-8 (j) For advertisements in the yellow pages of telephone
14-9 directories or other media not published more frequently than
14-10 annually, a lawyer shall honor the advertised fee or range of fees
14-11 for at least one year after publication.
14-12 (k) A lawyer may not advertise services under a name that
14-13 violates Section 81.208.
14-14 (l) An advertisement or written communication must disclose
14-15 the geographic location, by city or town, of the office in which
14-16 the lawyer who will actually perform the services advertised
14-17 principally practices law. If the office location is outside a
14-18 city or town, the county in which the office is located must be
14-19 disclosed. If more than one office location is advertised, each of
14-20 the locations must be staffed by a lawyer at least three days a
14-21 week.
14-22 (m) A lawyer may not, directly or indirectly, pay all or a
14-23 part of the cost of an advertisement by a lawyer not in the same
14-24 firm unless the advertisement discloses the name and address of the
14-25 nonadvertising lawyer, the relationship between the advertising
14-26 lawyer and the nonadvertising lawyer, and whether the advertising
14-27 lawyer may refer any case received through the advertisement to the
15-1 nonadvertising lawyer.
15-2 (n) The following information in an advertisement or written
15-3 communication may not be construed as a violation of Section
15-4 81.202:
15-5 (1) subject to this section and Section 81.208, the
15-6 name of the lawyer or law firm, a listing of lawyers associated
15-7 with the firm, office addresses and telephone numbers, office and
15-8 telephone service hours, and a designation such as "attorney" or
15-9 "law firm";
15-10 (2) the date of admission to the state bar and any
15-11 other bars and a listing of federal courts and jurisdictions other
15-12 than Texas in which the lawyer is licensed to practice;
15-13 (3) any technical and professional licenses granted by
15-14 this state or other recognized licensing authorities;
15-15 (4) any foreign language ability;
15-16 (5) the fields of law in which the lawyer is certified
15-17 or designated, subject to the requirements of Section 81.207;
15-18 (6) any prepaid or group legal service plans in which
15-19 the lawyer participates;
15-20 (7) the acceptance of credit cards;
15-21 (8) subject to Subsections (h), (i), and (j), the fee
15-22 for initial consultation and fee schedule; and
15-23 (9) a listing of the name and geographic location of a
15-24 lawyer or law firm as a sponsor of a public service announcement or
15-25 charitable, civic, or community program or event.
15-26 (o) This section does not prohibit a lawyer or law firm from
15-27 permitting the inclusion in law lists and law directories intended
16-1 primarily for the use of the legal profession of information that
16-2 traditionally has been included in these publications.
16-3 (p) All advertisements for a lawyer or law firm and all
16-4 written communications to a prospective client soliciting
16-5 professional employment must be reviewed and approved in writing by
16-6 the lawyer or a lawyer in the law firm.
16-7 (q) A copy or recording of an advertisement or a writing
16-8 soliciting professional employment shall be submitted to the
16-9 committee as provided by Section 81.206 and the lawyer shall
16-10 retain a copy or recording for four years after its last
16-11 dissemination along with a record of when and where it was used.
16-12 (r) A lawyer may not give or promise to give anything of
16-13 value to a prospective client or a layperson to obtain professional
16-14 employment. However, a lawyer may pay reasonable fees for
16-15 advertising and public relation services rendered in accordance
16-16 with this section and may pay usual charges and otherwise cooperate
16-17 with a lawyer referral service. This subsection does not preclude
16-18 a lawyer from negotiating with a prospective client the terms and
16-19 conditions of representation.
16-20 (s) A lawyer may not advertise an association with a lawyer
16-21 referral service or accept referrals from a lawyer referral service
16-22 unless the lawyer referral service meets the requirements of
16-23 Article 320d, Revised Statutes.
16-24 (t) A lawyer may not advertise as part of an advertising
16-25 cooperative or other joint venture comprised of two or more lawyers
16-26 not in the same law firm unless each advertisement:
16-27 (1) clearly states that the advertisement is paid for
17-1 by the cooperative lawyers;
17-2 (2) clearly names each of the cooperative lawyers;
17-3 (3) clearly states their principal office addresses;
17-4 (4) sets forth conspicuously the special competency
17-5 requirements of Section 81.207 for each lawyer with the
17-6 requirements observable by a prospective client for at least four
17-7 seconds per lawyer;
17-8 (5) does not state, suggest, or imply that the lawyers
17-9 participating in the advertising cooperative possess professional
17-10 superiority, are able to perform services in a superior manner, or
17-11 possess special competence in any area advertised unless with
17-12 regard to all areas advertised all lawyers participating have been
17-13 awarded a certificate of special competence by the Texas Board of
17-14 Legal Specialization or have been designated as possessing special
17-15 competence in an area advertised by an organization accredited by
17-16 the American Bar Association Accreditation of Speciality
17-17 Certification Program for Lawyers;
17-18 (6) the statements in the advertisement are readily
17-19 subject to verification; and
17-20 (7) the advertisement does not otherwise violate this
17-21 subchapter.
17-22 (u) Each lawyer who advertises as part of an advertising
17-23 cooperative or other joint venture is individually responsible for
17-24 complying with the filing requirements of Section 81.206 and shall
17-25 ensure that each cooperative advertisement does not violate this
17-26 subchapter.
17-27 Sec. 81.204. DIRECT CONTACT WITH PROSPECTIVE CLIENTS.
18-1 (a) A lawyer may not solicit professional employment in person, by
18-2 telephone, or by written communication in violation of this section
18-3 from a prospective client. A lawyer may not permit another person
18-4 to solicit employment in the lawyer's behalf. A lawyer may not
18-5 enter into an agreement for, charge for, or collect a fee for
18-6 professional employment obtained in violation of this section.
18-7 (b) A lawyer may not solicit professional employment by
18-8 sending or knowingly permitting to be sent on behalf of the lawyer,
18-9 the lawyer's firm, partner, or associate, or any other lawyer
18-10 affiliated with the lawyer or the lawyer's firm, a written
18-11 communication to a prospective client if:
18-12 (1) the communication concerns an action for personal
18-13 injury or wrongful death or otherwise relates to an accident or
18-14 disaster involving the person to whom the communication is
18-15 addressed or a relative of that person, unless the accident or
18-16 disaster occurred more than 31 days before the mailing of the
18-17 communication;
18-18 (2) the communication concerns a specific matter and
18-19 the lawyer knows or reasonably should have known that the person to
18-20 whom the communication is directed is represented by a lawyer in
18-21 the matter;
18-22 (3) the communication concerns an arrest of or
18-23 issuance of a summons to the person to whom the communication is
18-24 addressed or a relative of that person, unless the arrest of or
18-25 issuance of the summons to that person occurred more than 31 days
18-26 before the mailing of the communication;
18-27 (4) the communication concerns a lawsuit of any kind,
19-1 including an action for divorce, in which the person to whom the
19-2 communication is addressed is a defendant or a relative of that
19-3 person, unless the lawsuit in which the person is named as a
19-4 defendant has been on file for more than 31 days before the mailing
19-5 of the communication;
19-6 (5) the lawyer knows or reasonably should have known
19-7 that the injured person or relative of the injured person has
19-8 indicated a desire not to be contacted by or receive communications
19-9 concerning professional employment;
19-10 (6) the communication involves coercion, duress,
19-11 fraud, overreaching, harassment, intimidation, or undue influence;
19-12 (7) the communication contains a false, fraudulent,
19-13 misleading, deceptive, or unfair statement or claim; or
19-14 (8) the lawyer knows or reasonably should know that
19-15 the physical, emotional, or mental state of the person makes it
19-16 unlikely that the person would exercise reasonable judgment in
19-17 employing a lawyer.
19-18 (c) Written communications to prospective clients for the
19-19 purpose of obtaining professional employment are subject to
19-20 Subsections (d)-(m).
19-21 (d) Each page of a written communication shall be plainly
19-22 marked "ADVERTISEMENT" in red ink, and the lower left corner of the
19-23 face of the envelope containing a written communication must be
19-24 marked with a prominent red advertisement mark. If the written
19-25 communication is in the form of a self-mailing brochure or
19-26 pamphlet, the advertisement mark in red ink must appear on the
19-27 address panel of the brochure or pamphlet.
20-1 (e) A copy of each written communication and a sample of the
20-2 envelopes in which the communications are enclosed shall be filed
20-3 with the committee either before or concurrently with the mailing
20-4 of the communication to a prospective client, as provided by
20-5 Section 81.206. The lawyer shall retain a copy of each written
20-6 communication for four years.
20-7 (f) If written communications identical in content are sent
20-8 to two or more prospective clients, the lawyer may comply with
20-9 Subsection (e) by filing a single copy with a list of the names and
20-10 addresses of persons to whom the written communication was sent,
20-11 and by retaining the information in the manner required by
20-12 Subsection (e). If the lawyer periodically sends the identical
20-13 communication to additional prospective clients, lists of the
20-14 additional names and addresses shall be filed with the committee at
20-15 least monthly.
20-16 (g) A written communication mailed to a prospective client
20-17 shall be sent only by regular United States mail, not by registered
20-18 mail or any other form of restricted delivery.
20-19 (h) A reference may not be made in the communication as to
20-20 the communication having received any kind of approval from the
20-21 state bar.
20-22 (i) The first sentence of any written communication
20-23 concerning a specific matter shall be: "If you have already
20-24 retained a lawyer for this matter, please disregard this letter."
20-25 (j) A written communication shall be on letter-sized paper
20-26 rather than legal-sized paper and may not be made to resemble legal
20-27 pleadings or other legal documents. This subsection does not
21-1 prohibit the mailing of brochures and pamphlets.
21-2 (k) If a lawyer other than the lawyer whose name or
21-3 signature appears on the communication will actually handle the
21-4 case or matter, or if the case or matter will be referred to
21-5 another lawyer or law firm, any written communication concerning a
21-6 specific matter must include a statement advising the prospective
21-7 client of that fact.
21-8 (l) Any written communication prompted by a specific
21-9 occurrence involving or affecting the intended recipient of the
21-10 communication or a family member must disclose how the lawyer
21-11 obtained the information prompting the communication.
21-12 (m) A written communication to a prospective client may not
21-13 reveal on the envelope, or on the outside of a self-mailing
21-14 brochure or pamphlet, the nature of the prospective client's legal
21-15 problem.
21-16 Sec. 81.205. COMMITTEE ON ADVERTISING. (a) The standing
21-17 committee on advertising is created as a permanent committee of the
21-18 state bar. The committee is not subject to dissolution by the
21-19 board of directors under the state bar rules.
21-20 (b) The committee is composed of nine members. Six members
21-21 must be lawyers and at least two of those lawyer members must be
21-22 lawyers who advertise in electronic media. Three members may not
21-23 be lawyers.
21-24 (c) The president of the state bar, subject to the
21-25 concurrence of the board of directors, appoints the committee
21-26 members.
21-27 (d) Members serve staggered three-year terms with one-third
22-1 of the members' terms expiring each year.
22-2 (e) The president of the state bar shall designate a member
22-3 as chairperson of the committee who serves for one year.
22-4 (f) The committee shall:
22-5 (1) administer this subchapter;
22-6 (2) recommend to the executive director the hiring of
22-7 staff and other support personnel to evaluate lawyer advertising in
22-8 accordance with this subchapter;
22-9 (3) recommend to the board of directors the adoption
22-10 of additional rules or regulations concerning lawyer advertising;
22-11 (4) recommend to the board of directors educational
22-12 programs on advertising and legal ethics as the committee considers
22-13 advisable;
22-14 (5) recommend to the board of directors an annual
22-15 budget for the operation of the committee;
22-16 (6) recommend to the board of directors the amount of
22-17 any fees to be charged for filings under this subchapter;
22-18 (7) file inquiries alleging professional misconduct by
22-19 a lawyer or violation of this subchapter with the chief
22-20 disciplinary counsel;
22-21 (8) provide statistics and reports on advertising by
22-22 lawyers on an annual basis to the supreme court, the board of
22-23 directors, the governor, the lieutenant governor, and the speaker
22-24 of the house of representatives; and
22-25 (9) maintain records concerning all filings made under
22-26 this subchapter, the committee's findings, and any recommendations
22-27 made to the chief disciplinary counsel concerning alleged
23-1 professional misconduct or violation of this subchapter.
23-2 Sec. 81.206. EVALUATION OF ADVERTISEMENT. (a) A lawyer may
23-3 obtain an advisory opinion concerning the compliance of a
23-4 contemplated advertisement or written communication with this
23-5 subchapter in advance of disseminating the advertisement or
23-6 communication by submitting the material and the fee required by
23-7 Subsection (e) to the committee not later than the 21st day before
23-8 the date of dissemination. If the committee finds that the
23-9 advertisement complies with this subchapter, the lawyer's voluntary
23-10 submission satisfies the filing requirement in Subsection (b).
23-11 (b) Except as provided by Subsection (c), any lawyer who
23-12 advertises services through any public media or through written
23-13 communication not involving solicitation as prohibited by Section
23-14 81.204 shall file a copy of each advertisement with the committee
23-15 for evaluation of compliance with this subchapter. The copy shall
23-16 be filed either before or concurrently with the lawyer's first
23-17 dissemination of the advertisement or written communication and
23-18 shall be accompanied by the information and fee required by
23-19 Subsection (e).
23-20 (c) The following are exempt from the filing requirements of
23-21 Subsection (b):
23-22 (1) any advertisement in any public media, that does
23-23 not contain illustrations or information other than that authorized
23-24 by Sections 81.203(m)(1)-(9);
23-25 (2) a brief announcement in any public media that
23-26 identifies a lawyer or law firm as a contributor to a specified
23-27 charity or as a sponsor of a specified charitable, community, or
24-1 public interest program, activity, or event if the announcement
24-2 does not contain information about the lawyer or law firm other
24-3 than name, the city where the law offices are located, and the fact
24-4 of the sponsorship or contribution;
24-5 (3) a listing or entry in a law list;
24-6 (4) a newsletter mailed only to:
24-7 (A) existing or former clients;
24-8 (B) other lawyers or professionals;
24-9 (C) members of a qualified non-profit
24-10 organization by an attorney for the organization; or
24-11 (D) persons who have previously sought the
24-12 lawyer's advice; and
24-13 (5) professional announcement cards stating new or
24-14 changed associations, new offices, and similar changes relating to
24-15 a lawyer or law firm.
24-16 (d) A filing with the committee as required by Subsection
24-17 (b) or as permitted by Subsection (a) must consist of:
24-18 (1) a copy of the advertisement or communication in
24-19 the form or forms in which it is to be disseminated, for example,
24-20 videotapes, audiotapes, print copy, or photographs of outdoor
24-21 advertising;
24-22 (2) a production script of the advertisement setting
24-23 forth all words stated and printed in the advertisement with a
24-24 detailed description of all scenes, including actor appearances and
24-25 movements, and identifying the background music;
24-26 (3) a statement of when and where the advertisement or
24-27 communication will be used; and
25-1 (4) a check or money order payable to the state bar in
25-2 the amount of the fee set by the board of directors.
25-3 (e) The board of directors shall set a reasonable filing fee
25-4 each year for evaluating advertisements and written communications
25-5 as required by this subchapter. The board of directors shall
25-6 submit the fee to the supreme court for approval with the board's
25-7 proposed budget. The board shall set the fee in the amount
25-8 necessary to cover only:
25-9 (1) costs incurred by the committee and its staff in
25-10 evaluating and reviewing advertisements and written communications;
25-11 and
25-12 (2) costs for related purposes of enforcing this
25-13 subchapter.
25-14 (f) The committee shall evaluate all advertisements and
25-15 written communications filed with it under this subchapter for
25-16 compliance with this subchapter. Except as otherwise provided by
25-17 this subsection, the committee shall complete its evaluation not
25-18 later than the 21st day after the date of receipt of a filing
25-19 unless the committee determines that there is reasonable doubt that
25-20 the advertisement or written communication complies with this
25-21 subchapter and that further examination is warranted and cannot be
25-22 completed within the 21-day period, and advises the lawyer within
25-23 the 21-day period. If the committee requires the further
25-24 examination, the committee shall complete its review as promptly as
25-25 the circumstances reasonably allow. If the committee does not send
25-26 any communication to the lawyer within the 21-day period, the
25-27 advertisement is considered approved.
26-1 (g) If requested by the committee, the filing lawyer shall
26-2 submit information to substantiate statements or representations
26-3 made or implied in the lawyer's advertisement or written
26-4 communication.
26-5 (h) If the committee determines that an advertisement or
26-6 written communication does not comply with this subchapter, the
26-7 committee shall identify the manner in which the advertisement or
26-8 written communication does not comply with this subchapter and
26-9 shall advise the lawyer that dissemination or continued
26-10 dissemination of the advertisement or written communication may
26-11 result in professional discipline.
26-12 (i) A finding by the committee of either compliance or
26-13 noncompliance is not binding in a grievance proceeding, but may be
26-14 offered as evidence.
26-15 (j) If a change of circumstances occurring subsequent to the
26-16 committee's evaluation of an advertisement or written communication
26-17 raises a substantial possibility that the advertisement or written
26-18 communication has become false or misleading as a result of the
26-19 change in circumstances, the lawyer shall promptly refile the
26-20 advertisement or a modified advertisement or written communication
26-21 with the committee with an explanation of the change in
26-22 circumstances and a reasonable fee set by the board of directors.
26-23 Sec. 81.207. COMMUNICATION OF FIELD OF PRACTICE. (a)
26-24 Except as provided by this section, a lawyer may not communicate
26-25 the fact that the lawyer is a specialist.
26-26 (b) A lawyer admitted to engage in patent practice before
26-27 the United States patent and trademark office may use the
27-1 designation "patents," "patent attorney," "patent lawyer," or any
27-2 combination of those terms. A lawyer engaged in trademark practice
27-3 may use the designation "trademark," "trademark attorney,"
27-4 "trademark lawyer," or any combination of those terms. A lawyer
27-5 engaged in patent and trademark practice may hold himself out as
27-6 specializing in "intellectual property law," "patents, trademarks,
27-7 and related matters," or "patent, trademark, copyright law, and
27-8 unfair competition," or a combination of those terms.
27-9 (c) A lawyer who has been awarded a certificate of special
27-10 competence by the Texas Board of Legal Specialization in an area
27-11 advertised shall state with respect to each area, "board certified
27-12 (area of specialization)--Texas Board of Legal Specialization."
27-13 (d) A lawyer who has been designated as possessing special
27-14 competence in an area advertised by an organization accredited by
27-15 the American Bar Association Accreditation of Speciality
27-16 Certification Program for Lawyers may state with respect to each
27-17 area, "board-certified (area of specialization)--(name of
27-18 organization)."
27-19 (e) A lawyer who has not been awarded a certificate of
27-20 special competence by the Texas Board of Legal Specialization in an
27-21 area advertised shall state with respect to each area, "not
27-22 certified by the Texas Board of Legal Specialization." If the area
27-23 of law advertised has not been designated as an area in which a
27-24 lawyer may be awarded a certificate of special competency by the
27-25 Texas Board of Legal Specialization, the lawyer may also state with
27-26 regard to that area, "no designation has been made by the Texas
27-27 Board of Legal Specialization for a certificate of special
28-1 competence in this area."
28-2 (f) The statements referred to in Subsections (c), (d), and
28-3 (e) shall be displayed conspicuously with no abbreviations or
28-4 changes in the language set forth in those subsections, and those
28-5 statements must be separate and apart from any other statements so
28-6 as to be easily seen or understood by the ordinary consumer.
28-7 Sec. 81.208. FIRM NAMES AND LETTERHEADS. (a) A lawyer may
28-8 not use a firm name, letterhead, or other professional designation
28-9 that violates Section 81.202.
28-10 (b) A lawyer in private practice may not practice under a
28-11 trade name, a name that is misleading as to the identity of the
28-12 lawyer or lawyers practicing under the name, or a firm name
28-13 containing names other than those of one or more of the lawyers in
28-14 the firm, except that the names of a professional corporation or
28-15 professional association may contain "P.C.," "P.A.," "L.L.P.,"
28-16 "L.L.C.," or similar symbols indicating the nature of the
28-17 organization. If otherwise lawful a firm may use as or continue to
28-18 include in its name the name or names of one or more deceased or
28-19 retired members of the firm or of a predecessor firm in a
28-20 continuing line of succession. This subsection does not prohibit a
28-21 married woman from practicing under her maiden name.
28-22 (c) A lawyer may not advertise under a trade or fictitious
28-23 name, except that a lawyer who actually practices under a trade
28-24 name as authorized by Subsection (b) may use that name in an
28-25 advertisement. A lawyer who advertises under a trade or fictitious
28-26 name violates this subsection unless the same name is the law firm
28-27 name that appears on the lawyer's letterhead, business cards,
29-1 office sign, fee contracts, and with the lawyer's signature on
29-2 pleadings and other legal documents.
29-3 (d) A law firm with offices in more than one jurisdiction
29-4 may use the same name in each jurisdiction, but identification of
29-5 the lawyers in an office of the firm must indicate the
29-6 jurisdictional limitations on those not licensed to practice in the
29-7 jurisdiction in which the office is located.
29-8 (e) The name of a lawyer occupying a judicial, legislative,
29-9 or public executive or administrative position may not be used in
29-10 the name of a law firm, or in communication on its behalf, during
29-11 any substantial period in which the lawyer is not actively and
29-12 regularly practicing with the firm.
29-13 (f) A lawyer may not state or imply that the lawyer
29-14 practices in a partnership or other organization unless the lawyer
29-15 does practice in a partnership or other organization.
29-16 Sec. 81.209. CONTRACTS. A contract of employment entered
29-17 into by a lawyer in violation of this subchapter is void.
29-18 SECTION 5. (a) The change in law made by Sections 1 and 2
29-19 of this Act applies only to an offense committed on or after the
29-20 effective date of this Act. For purposes of this section, an
29-21 offense is committed before the effective date of this Act if any
29-22 element of the offense occurs before that date.
29-23 (b) An offense committed before the effective date of this
29-24 Act is covered by the law in effect when the offense was committed,
29-25 and the former law is continued in effect for this purpose.
29-26 SECTION 6. Subchapter I, Chapter 81, Government Code, as
29-27 added by this Act, applies only to communications made or contracts
30-1 entered into on or after the effective date of this Act.
30-2 SECTION 7. This Act takes effect January 1, 1994.
30-3 SECTION 8. The importance of this legislation and the
30-4 crowded condition of the calendars in both houses create an
30-5 emergency and an imperative public necessity that the
30-6 constitutional rule requiring bills to be read on three several
30-7 days in each house be suspended, and this rule is hereby suspended.