By Wolens 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 38.12, Penal Code, is amended to read as
1-6 follows:
1-7 Sec. 38.12. Barratry. (a) A person commits an offense if,
1-8 with intent to obtain an economic benefit for himself, he:
1-9 (1) institutes any suit or claim in which he knows he
1-10 has no interest;
1-11 (2) institutes any suit or claim that he knows is
1-12 false;
1-13 (3) either in person or by telephone solicits
1-14 employment for himself or another to prosecute or defend a suit or
1-15 to collect a claim; <or>
1-16 (4) procures another to solicit for him or another
1-17 employment to prosecute or defend a suit or to collect a claim; or
1-18 (5) pays or gives another money or anything of value
1-19 for providing him or another person with employment to prosecute or
1-20 defend a suit or to collect a claim.
1-21 (b) A person commits an offense if he:
1-22 (1) knowingly:
1-23 (A) expends funds the person knows or believes
1-24 are derived from the commission of an offense under Subsection (a)
2-1 of this section; or
2-2 (B) finances or invests funds the person knows
2-3 or believes are intended to further the commission of an offense
2-4 under Subsection (a) of this section; or
2-5 (2) negligently:
2-6 (A) expends funds the person in the exercise of
2-7 reasonable care should know or should believe are derived from the
2-8 commission of an offense under Subsection (a) of this section; or
2-9 (B) finances or invests funds the person in the
2-10 exercise of reasonable care should know or should believe are
2-11 intended to further the commission of an offense under Subsection
2-12 (a) of this section.
2-13 (c) Intent to obtain an economic benefit is presumed if the
2-14 person accepts employment for a fee, accepts a fee, enters into a
2-15 contingent fee contract, or accepts or agrees to accept money or
2-16 any economic benefit.
2-17 (d) A person commits an offense if the person, with the
2-18 intent to obtain professional employment for himself or another,
2-19 sends, or knowingly permits to be sent, a written communication
2-20 regarding employment to an individual who has not sought the
2-21 person's advice if:
2-22 (1) the communication concerns an action for personal
2-23 injury or wrongful death or otherwise relates to an accident or
2-24 disaster involving the person to whom the communication is
2-25 addressed or a relative of that person, and the date of the mailing
2-26 of the communication was before the 46th day after the accident or
2-27 disaster occurred;
3-1 (2) the written communication concerns a specific
3-2 matter and the lawyer or others acting as, for, or on behalf of a
3-3 lawyer or as a broker of legal services or other professionals
3-4 knows or reasonably should have known that the person to whom the
3-5 communication is directed is represented by a lawyer in the matter;
3-6 (3) the communication concerns an arrest of the person
3-7 to whom the communication is addressed or a relative of that
3-8 person, and the date of the mailing of the communication was before
3-9 the 46th day after the date the arrest of that person occurred;
3-10 (4) the communication concerns a lawsuit of any kind,
3-11 including an action for divorce, in which the person to whom the
3-12 communication is addressed is a defendant or a relative of that
3-13 person, unless the lawsuit in which the person is named as a
3-14 defendant has been on file for more than 45 days before the date of
3-15 the mailing of the communication;
3-16 (5) the person knows or reasonably should have known
3-17 that the injured person or relative of the injured person has
3-18 indicated a desire not to be contacted by or receive communications
3-19 concerning professional employment;
3-20 (6) the communication involves coercion, duress,
3-21 fraud, overreaching, harassment, intimidation, or undue influence;
3-22 (7) the communication contains a false, fraudulent,
3-23 misleading, deceptive, or unfair statement or claim; or
3-24 (8) the person knows or reasonably should know that
3-25 the physical, emotional, or mental state of the individual makes it
3-26 unlikely that the individual would exercise reasonable judgment
3-27 concerning professional employment.
4-1 (e) For purposes of Subsection (d)(5) of this section, a
4-2 desire not to be contacted is presumed if an accident report
4-3 reflects that such an indication has been made by the injured
4-4 person or relative.
4-5 (f) An offense under Subsection (a) or (b)(1) of this
4-6 section is a felony of the third degree.
4-7 (g) <(c)> Except as provided by Subsection (h) <(d)> of this
4-8 section, an offense under Subsection (b)(2) or (d) <(a)> of this
4-9 section is a Class A misdemeanor.
4-10 (h) <(d)> An offense under Subsection (b)(2) <(a)(3)> or (d)
4-11 <(a)(4)> of this section is a felony of the third degree if it is
4-12 shown on the trial of the offense that<:>
4-13 <(1)> the defendant has previously been convicted
4-14 under Subsection (b)(2) <(a)(3)> or (d) <(a)(4)> of this section<;
4-15 and>
4-16 <(2) the solicitation is performed in whole or in
4-17 part:>
4-18 <(A) in a hospital, funeral establishment, or
4-19 public or private cemetery or at the scene of an accident;>
4-20 <(B) by using a person who is an employee of:>
4-21 <(i) this state;>
4-22 <(ii) a political subdivision of this
4-23 state, including a county, municipality, or special purpose
4-24 district or authority; or>
4-25 <(iii) a hospital or funeral
4-26 establishment; or>
4-27 <(C) by impersonating a clergyman, public
5-1 employee, or emergency assistance worker or volunteer>.
5-2 (i) <(e)> Final conviction of felony barratry is a serious
5-3 crime for all purposes and acts, specifically including the State
5-4 Bar Rules and the Texas Rules of Disciplinary Procedure.
5-5 SECTION 2. Article 42.12, Code of Criminal Procedure, is
5-6 amended by adding Section 13A to read as follows:
5-7 Sec. 13A. BARRATRY PROBATION. A court granting probation to
5-8 a defendant convicted of an offense under Section 38.12, Penal
5-9 Code, shall require as a condition of probation that the defendant
5-10 submit to detention in a county jail for a period of:
5-11 (1) not less than 24 hours or more than 30 days, if
5-12 the defendant is convicted of a misdemeanor; or
5-13 (2) not less than 10 days or more than 180 days, if
5-14 the defendant is convicted of a felony.
5-15 SECTION 3. Section 45(a), Uniform Act Regulating Traffic on
5-16 Highways (Article 6701d, Vernon's Texas Civil Statutes), is amended
5-17 to read as follows:
5-18 (a) The department shall prepare and upon request supply to
5-19 police departments, coroners, sheriffs, garages, and other suitable
5-20 agencies or individuals, forms for accident reports required
5-21 hereunder, appropriate with respect to the persons required to make
5-22 such reports and the purposes to be served. The written reports to
5-23 be made by person involved in accidents and by investigating
5-24 officers shall call for sufficiently detailed information to
5-25 disclose with reference to a traffic accident the cause, conditions
5-26 then existing, and the persons and vehicle involved. Also, the
5-27 forms for the written reports shall include a means for designating
6-1 and identifying peace officers, fire fighters, and emergency
6-2 medical services employees who during an emergency are involved in
6-3 accidents while driving law enforcement vehicles, fire department
6-4 vehicles, or emergency medical services vehicles in pursuit of
6-5 their duties. The forms shall also contain a statement by the
6-6 peace officers, fire fighters, and emergency medical services
6-7 employees describing the nature of the emergency. The forms must
6-8 include a means of designating whether an individual involved in an
6-9 accident desires to be contacted by persons seeking to obtain
6-10 professional employment. An individual's response as to whether
6-11 the individual desires to be contacted is not admissible evidence
6-12 in a civil trial.
6-13 SECTION 4. Chapter 81, Government Code, is amended by adding
6-14 Subchapter I to read as follows:
6-15 SUBCHAPTER I. INFORMATION CONCERNING LAWYER SERVICES
6-16 Sec. 81.201. COMMUNICATIONS CONCERNING LAWYER SERVICES. (a)
6-17 A lawyer may not make or permit to be made a false, misleading,
6-18 deceptive, or unfair communication about the lawyer or the lawyer's
6-19 services. A communication violates this section if it:
6-20 (1) contains a material misrepresentation of fact or
6-21 law or omits a fact necessary to make the statement considered as a
6-22 whole not materially misleading;
6-23 (2) is likely to create an unjustified expectation
6-24 about results the lawyer can achieve or states or implies that the
6-25 lawyer can achieve results by means that violate this subchapter,
6-26 the Texas Disciplinary Rules of Professional Conduct, or other law;
6-27 (3) compares the lawyer's services with other lawyers'
7-1 services, unless the comparison can be factually substantiated;
7-2 (4) states or implies that the lawyer is able to
7-3 influence improperly or upon irrelevant grounds any tribunal,
7-4 legislative body, or public official; or
7-5 (5) contains a testimonial.
7-6 (b) Any statement about fees must include the amount of the
7-7 fee, whether contingent or otherwise, and must state whether the
7-8 client may be obligated for all or some portion of the cost
7-9 involved.
7-10 Sec. 81.202. ADVERTISING. (a) A lawyer may, not
7-11 inconsistent with this subchapter, advertise services through
7-12 public media, such as a telephone directory, legal directory,
7-13 newspaper or other periodical, billboards and other signs, radio,
7-14 television, and recorded messages the public may access by dialing
7-15 a telephone number, or through written communication not involving
7-16 solicitation as prohibited by Section 81.204. This subsection does
7-17 not apply to any advertisement broadcast or disseminated in another
7-18 jurisdiction in which the advertising lawyer is admitted if the
7-19 advertisement complies with the rules governing lawyer advertising
7-20 in that jurisdiction and is not intended for broadcast or
7-21 dissemination in this state.
7-22 (b) Advertisements on the electronic media such as
7-23 television and radio may contain the same factual information and
7-24 illustrations as permitted in advertisements in the print media.
7-25 The information must be articulated by a single voice, with no
7-26 background sounds of sirens, crashing vehicles, or explosions. If
7-27 music is used as background for an advertisement, it must be
8-1 instrumental music. The voice may be that of a full-time employee
8-2 of the firm whose services are advertised; it may not be that of a
8-3 celebrity whose voice is recognizable to the public. The lawyer or
8-4 full-time employee of the firm whose services are being advertised
8-5 may appear on screen or on radio.
8-6 (c) All advertisements and written communications authorized
8-7 by this subchapter must include the name of at least one lawyer or
8-8 the lawyer referral service responsible for the content of the
8-9 advertisement.
8-10 (d) Except as provided by this subsection, all
8-11 advertisements must contain the following disclosure: "The hiring
8-12 of a lawyer is an important decision that should not be based
8-13 solely on advertisements. Before you decide, ask us to send you
8-14 free written information about our qualifications and experience."
8-15 This disclosure need not appear in electronic advertisements or
8-16 advertisements in the public print media that do not contain
8-17 illustrations or information other than that listed in Subsections
8-18 (o)(1)-(9).
8-19 (e) A dramatization or testimonial may not be included in
8-20 any advertisement in any media.
8-21 (f) An illustration used in advertisements must present
8-22 information that may be factually substantiated and is not merely
8-23 self-laudatory.
8-24 (g) An advertisement or written communication that indicates
8-25 one or more areas of law in which the lawyer or law firm practices
8-26 must conform to Section 81.206.
8-27 (h) An advertisement or written communication that contains
9-1 information about the lawyer's fee, including those that indicate
9-2 that no fee will be charged in the absence of a recovery, must
9-3 disclose whether the client will be liable for any expenses in
9-4 addition to the fee. An advertisement or written communication
9-5 that indicates that the charging of a fee is contingent on outcome
9-6 or that the fee will be a percentage of the recovery must disclose:
9-7 (1) that the client will be liable for expenses
9-8 regardless of outcome, if the lawyer intends to hold the client
9-9 liable; and
9-10 (2) whether the percentage fee will be computed before
9-11 expenses are deducted from the recovery, if the lawyer intends to
9-12 compute the percentage fee before deducting the expenses.
9-13 (i) Except as provided by Subsection (j), a lawyer who
9-14 advertises a specific fee or range of fees for a particular service
9-15 shall honor the advertised fee or range of fees for at least 90
9-16 days unless the advertisement specifies a shorter period.
9-17 (j) For advertisements in the yellow pages of telephone
9-18 directories or other media not published more frequently than
9-19 annually, a lawyer shall honor the advertised fee or range of fees
9-20 for at least one year after publication.
9-21 (k) A lawyer may not make a statement that is merely
9-22 self-laudatory or a statement that describes or characterizes the
9-23 quality of the lawyer's services in an advertisement or written
9-24 communication. This subsection does not apply to information
9-25 furnished to a prospective client at that person's request or to
9-26 information supplied to an existing client.
9-27 (l) A lawyer may not advertise services under a name that
10-1 violates Section 81.207.
10-2 (m) An advertisement or written communication must disclose
10-3 the geographic location, by city or town, of the office in which
10-4 the lawyer or lawyers who will actually perform the services
10-5 advertised principally practice law. If the office location is
10-6 outside a city or town, the county in which the office is located
10-7 must be disclosed.
10-8 (n) A lawyer may not, directly or indirectly, pay all or a
10-9 part of the cost of an advertisement by a lawyer not in the same
10-10 firm unless the advertisement discloses the name and address of the
10-11 nonadvertising lawyer, the relationship between the advertising
10-12 lawyer and the nonadvertising lawyer, and whether the advertising
10-13 lawyer may refer any case received through the advertisement to the
10-14 nonadvertising lawyer.
10-15 (o) The following information in an advertisement or written
10-16 communication is presumed not to violate Section 81.201:
10-17 (1) subject to this section and Section 81.207, the
10-18 name of the lawyer or law firm, a listing of lawyers associated
10-19 with the firm, office addresses and telephone numbers, office and
10-20 telephone service hours, and a designation such as "attorney" or
10-21 "law firm";
10-22 (2) the date of admission to the state bar and any
10-23 other bars and a listing of federal courts and jurisdictions other
10-24 than Texas in which the lawyer is licensed to practice;
10-25 (3) any technical and professional licenses granted by
10-26 this state or other recognized licensing authorities;
10-27 (4) any foreign language ability;
11-1 (5) the fields of law in which the lawyer is certified
11-2 or designated, subject to the requirements of Section 81.206;
11-3 (6) any prepaid or group legal service plans in which
11-4 the lawyer participates;
11-5 (7) the acceptance of credit cards;
11-6 (8) subject to Subsections (h), (i), and (j), the fee
11-7 for initial consultation and fee schedule; and
11-8 (9) a listing of the name and geographic location of a
11-9 lawyer or law firm as a sponsor of a public service announcement or
11-10 charitable, civic, or community program or event.
11-11 (p) This section does not prohibit a lawyer or law firm from
11-12 permitting the inclusion in law lists and law directories intended
11-13 primarily for the use of the legal profession of information that
11-14 traditionally has been included in these publications.
11-15 (q) A copy or recording of an advertisement or written or
11-16 recorded communication shall be submitted to the standing committee
11-17 on lawyer advertising as provided by Section 81.205 and the lawyer
11-18 shall retain a copy or recording for four years after its last
11-19 dissemination along with a record of when and where it was used.
11-20 (r) A lawyer may not give or promise to give anything of
11-21 value to a lay person for referring a client or potential client to
11-22 any lawyer or law firm. However, a lawyer may pay reasonable fees
11-23 for advertising and public relation services rendered in accordance
11-24 with this section and may pay usual charges and otherwise cooperate
11-25 with organizations that refer clients if the organization does not
11-26 profit from the rendition of legal services by the lawyer.
11-27 Sec. 81.203. LEGAL SERVICE INFORMATION. (a) A lawyer or
12-1 law firm that advertises the lawyer's or law firm's availability to
12-2 provide legal services shall have available in written form for
12-3 delivery to any potential client:
12-4 (1) a factual statement detailing the background,
12-5 training, and experience of each lawyer or law firm;
12-6 (2) if the lawyer or law firm claims special expertise
12-7 in the representation of clients in special matters or publicly
12-8 limits the lawyer's or law firm's practice to special types of
12-9 cases or clients, the written information must set forth the
12-10 factual details of the lawyer's experience, expertise, background,
12-11 and training in those matters.
12-12 (b) A lawyer or law firm that advertises services by written
12-13 communication not involving solicitation as provided in Section
12-14 81.204 shall enclose with each written communication the
12-15 information described in Subsection (a).
12-16 (c) If a potential client requests information regarding a
12-17 lawyer or law firm for the purpose of making a decision regarding
12-18 employment of the lawyer or law firm:
12-19 (1) the lawyer or law firm shall promptly furnish, by
12-20 mail if requested, the written information described in Subsection
12-21 (a);
12-22 (2) the lawyer or law firm may furnish additional
12-23 factual information regarding the lawyer or law firm the lawyer or
12-24 law firm considers valuable to assist the client; and
12-25 (3) if the information furnished to the client
12-26 includes a fee contract, the top of each page of the contract shall
12-27 be marked "SAMPLE" in red ink in a type size one size larger than
13-1 the largest type used in the contract and the words "DO NOT SIGN"
13-2 must appear on the client signature line.
13-3 (d) The lawyer or law firm shall keep a copy of all
13-4 information furnished to clients as required by this section for at
13-5 least four years after the last regular use of the information.
13-6 (e) If the lawyer or law firm advertises its services as
13-7 provided by Section 81.202, the advertisement must contain the
13-8 information set forth in Section 81.202(a) unless exempt by the
13-9 terms of that rule. This disclosure is not necessary in written
13-10 communications covered by Section 81.204, which must be accompanied
13-11 by a copy of the statement of qualifications and experience
13-12 described in Subsection (a).
13-13 (f) A factual statement contained in any advertisement or
13-14 written communication or any information furnished to a prospective
13-15 client under this rule may not:
13-16 (1) be directly or impliedly false or misleading;
13-17 (2) be potentially false or misleading;
13-18 (3) fail to disclose material information necessary to
13-19 prevent the information supplied from being actually or potentially
13-20 false or misleading;
13-21 (4) be unsubstantiated in fact; or
13-22 (5) be unfair or deceptive.
13-23 (g) On reasonable request by the state bar, a lawyer shall
13-24 promptly provide proof that any statement or claim made in any
13-25 advertisement or written communication and the information
13-26 furnished to a prospective client as authorized or required by
13-27 this section complies with Subsection (f).
14-1 (h) A statement and any information furnished to a
14-2 prospective client as authorized by Subsection (a) that a lawyer or
14-3 law firm will represent a client in a particular type of matter,
14-4 without appropriate qualification, is presumed to be misleading if
14-5 the lawyer reasonably believes that a lawyer or law firm not
14-6 associated with the originally retained lawyer or law firm will be
14-7 associated or act as primary counsel in representing the client.
14-8 In determining whether the statement is misleading in this respect,
14-9 the history of prior conduct by the lawyer in similar matters may
14-10 be considered.
14-11 Sec. 81.204. DIRECT CONTACT WITH PROSPECTIVE CLIENTS.
14-12 (a) A lawyer may not solicit professional employment from a
14-13 prospective client except with those to whom the lawyer is related
14-14 by blood or marriage or whom the lawyer personally represents. A
14-15 lawyer may not permit an employee or agent of the lawyer to solicit
14-16 in the lawyer's behalf. A lawyer may not enter into an agreement
14-17 for, charge for, or collect a fee for professional employment
14-18 obtained in violation of this section. The term "solicit" includes
14-19 contact in person, by telephone, telegraph, or facsimile, or by
14-20 other communication directed to a specific recipient and includes
14-21 any written form of communication directed to a specific recipient
14-22 that does not meet the requirements of Subsection (b).
14-23 (b) A lawyer may not send or knowingly permit to be sent on
14-24 behalf of the lawyer, the lawyer's firm, partner, or associate, or
14-25 any other lawyer affiliated with the lawyer or the lawyer's firm, a
14-26 written communication to a prospective client for the purpose of
14-27 obtaining professional employment if:
15-1 (1) the communication concerns an action for personal
15-2 injury or wrongful death or otherwise relates to an accident or
15-3 disaster involving the person to whom the communication is
15-4 addressed or a relative of that person, unless the accident or
15-5 disaster occurred more than 45 days before the mailing of the
15-6 communication;
15-7 (2) the written communication concerns a specific
15-8 matter and the lawyer or others acting as, for, or on behalf of a
15-9 lawyer or as a broker of legal services or other professionals
15-10 knows or reasonably should have known that the person to whom the
15-11 communication is directed is represented by a lawyer in the matter;
15-12 (3) the communication concerns an arrest of the person
15-13 to whom the communication is addressed or a relative of that
15-14 person, unless the arrest of that person occurred more than 45 days
15-15 before the mailing of the communication;
15-16 (4) the communication concerns a lawsuit of any kind,
15-17 including an action for divorce, in which the person to whom the
15-18 communication is addressed is a defendant or a relative of that
15-19 person, unless the lawsuit in which the person is named as a
15-20 defendant has been on file for more than 45 days before the mailing
15-21 of the communication;
15-22 (5) the person knows or reasonably should have known
15-23 that the injured person or relative of the injured person has
15-24 indicated a desire not to be contacted by or receive communications
15-25 concerning professional employment;
15-26 (6) the communication involves coercion, duress,
15-27 fraud, overreaching, harassment, intimidation, or undue influence;
16-1 (7) the communication contains a false, fraudulent,
16-2 misleading, deceptive, or unfair statement or claim; or
16-3 (8) the lawyer knows or reasonably should know that
16-4 the physical, emotional, or mental state of the person makes it
16-5 unlikely that the person would exercise reasonable judgment in
16-6 employing a lawyer.
16-7 (c) Written communications to prospective clients for the
16-8 purpose of obtaining professional employment are subject to
16-9 Subsections (d)-(o).
16-10 (d) Each page of the written communication shall be plainly
16-11 marked "advertisement" in red ink, and the lower left corner of the
16-12 face of the envelope containing a written communication must be
16-13 marked with a prominent red advertisement mark. If the written
16-14 communication is in the form of a self-mailing brochure or
16-15 pamphlet, the advertisement mark in red ink must appear on the
16-16 address panel of the brochure or pamphlet. A brochure solicited by
16-17 a client or prospective client need not contain the advertisement
16-18 mark.
16-19 (e) A copy of each written communication and a sample of the
16-20 envelopes in which the communications are enclosed shall be filed
16-21 with the standing committee on lawyer advertising either before or
16-22 concurrently with the mailing of the communication to a prospective
16-23 client, as provided by Section 81.205. The lawyer shall retain a
16-24 copy of each written communication for four years.
16-25 (f) If written communications identical in content are sent
16-26 to two or more prospective clients, the lawyer may comply with
16-27 Subsection (e) by filing a single copy with a list of the names and
17-1 addresses of persons to whom the written communication was sent,
17-2 and by retaining the information in the manner required by
17-3 Subsection (e). If the lawyer periodically sends the identical
17-4 communication to additional prospective clients, lists of the
17-5 additional names and addresses shall be filed with the committee at
17-6 least monthly.
17-7 (g) A written communication mailed to a prospective client
17-8 shall be sent only by regular United States mail, not by registered
17-9 mail or other form of restricted delivery.
17-10 (h) A reference may not be made in the communication as to
17-11 the communication having received any kind of approval from the
17-12 state bar.
17-13 (i) Every written communication must be accompanied by a
17-14 written statement of the lawyer or law firm's qualifications as
17-15 required by Section 81.203.
17-16 (j) If a contract for representation is mailed with the
17-17 written communication, the top of each page of the contract shall
17-18 be marked "SAMPLE" in red ink in a type size one size larger than
17-19 the largest type used in the contract and the words "DO NOT SIGN"
17-20 must appear on the client signature line.
17-21 (k) The first sentence of any written communication
17-22 concerning a specific matter shall be: "If you have already
17-23 retained a lawyer for this matter, please disregard this letter."
17-24 (l) A written communication shall be on letter-sized paper
17-25 rather than legal-sized paper and may not be made to resemble legal
17-26 pleadings or other legal documents. This subsection does not
17-27 prohibit the mailing of brochures and pamphlets.
18-1 (m) If a lawyer other than the lawyer whose name or
18-2 signature appears on the communication will actually handle the
18-3 case or matter, or if the case or matter will be referred to
18-4 another lawyer or law firm, any written communication concerning a
18-5 specific matter must include a statement advising the client of
18-6 that fact.
18-7 (n) Any written communication prompted by a specific
18-8 occurrence involving or affecting the intended recipient of the
18-9 communication or a family member must disclose how the lawyer
18-10 obtained the information prompting the communication.
18-11 (o) A written communication seeking employment by a specific
18-12 prospective client in a specific matter may not reveal on the
18-13 envelope, or on the outside of a self-mailing brochure or pamphlet,
18-14 the nature of the client's legal problem.
18-15 Sec. 81.205. EVALUATION OF ADVERTISEMENT. (a) A lawyer may
18-16 obtain an advisory opinion concerning the compliance of a
18-17 contemplated advertisement or written communication with this
18-18 subchapter in advance of disseminating the advertisement or
18-19 communication by submitting the material and the fee required by
18-20 Subsection (e) to the standing committee on lawyer advertising of
18-21 the state bar not later than the 30th day before the date of
18-22 dissemination. If the committee finds that the advertisement
18-23 complies with this subchapter, the lawyer's voluntary submission
18-24 satisfies the filing requirement in Subsection (b).
18-25 (b) Except as provided by Subsection (c), any lawyer who
18-26 advertises services through any public media or through written
18-27 communication not involving solicitation as defined by Section
19-1 81.204 shall file a copy of each advertisement with the standing
19-2 committee on lawyer advertising for evaluation of compliance with
19-3 these rules. The copy shall be filed either before or concurrently
19-4 with the lawyer's first dissemination of the advertisement or
19-5 written communication and shall be accompanied by the information
19-6 and fee required by Subsection (e).
19-7 (c) The following are exempt from the filing requirements of
19-8 Subsection (b):
19-9 (1) any advertisement in any of the public media,
19-10 including the yellow pages of telephone directories, that does not
19-11 contain illustrations or information other than that authorized by
19-12 Sections 81.202(o)(1)-(9);
19-13 (2) a brief announcement in any of the public media
19-14 that identifies a lawyer or law firm as a contributor to a
19-15 specified charity or as a sponsor of a specified charitable,
19-16 community, or public interest program, activity, or event if the
19-17 announcement does not contain information about the lawyer or law
19-18 firm other than name, the city where the law offices are located,
19-19 and the fact of the sponsorship or contribution;
19-20 (3) a listing or entry in a law list;
19-21 (4) a newsletter mailed only to existing clients or
19-22 other lawyers; and
19-23 (5) professional announcement cards stating new or
19-24 changed associations, new offices, and similar changes relating to
19-25 a lawyer or law firm that are mailed only to other lawyers,
19-26 relatives, close personal friends, and existing clients.
19-27 (d) The exemption in Subsection (c)(1) extends to a
20-1 television advertisement only if the visual display featured in the
20-2 advertisement is limited to the words spoken by the announcer.
20-3 (e) A filing with the committee as required by Subsection
20-4 (b) or as permitted by Subsection (a) must consist of:
20-5 (1) a copy of the advertisement or communication in
20-6 the form or forms in which it is to be disseminated, for example,
20-7 videotapes, audiotapes, print media, or photographs of outdoor
20-8 advertising;
20-9 (2) a transcript, if the advertisement or
20-10 communication is on videotape or audiotape;
20-11 (3) a statement listing all media in which the
20-12 advertisement or communication will appear, the anticipated
20-13 frequency of use of the advertisement or communication in each
20-14 medium in which it will appear, and the anticipated time period
20-15 during which the advertisement or communication will be used; and
20-16 (4) a fee of $25 payable to the state bar.
20-17 (f) The fee required by Subsection (e)(4) may only be used
20-18 for the purposes of evaluation and review of advertisements under
20-19 this subchapter and for the purpose of enforcing this subchapter.
20-20 (g) The committee shall evaluate all advertisements and
20-21 written communications filed with it pursuant to this rule for
20-22 compliance with the applicable rules set forth in this subchapter.
20-23 Except as otherwise provided by this subsection, the committee
20-24 shall complete its evaluation not later than the 30th day after the
20-25 date of receipt of a filing unless the committee determines that
20-26 there is reasonable doubt that the advertisement or written
20-27 communication complies with this subchapter and that further
21-1 examination is warranted and cannot be completed within the 30-day
21-2 period, and advises the lawyer within the 30-day period. If the
21-3 committee requires the further examination, the committee shall
21-4 complete its review as promptly as the circumstances reasonably
21-5 allow. If the committee does not send any communication to the
21-6 lawyer within the 30-day period, the advertisement is considered
21-7 approved.
21-8 (h) If requested by the committee, the filing lawyer shall
21-9 submit information to substantiate representations made or implied
21-10 in the lawyer's advertisement or written communication.
21-11 (i) If the committee determines that an advertisement or
21-12 written communication does not comply with this subchapter, the
21-13 committee shall advise the lawyer that dissemination or continued
21-14 dissemination of the advertisement or written communication may
21-15 result in professional discipline.
21-16 (j) A finding by the committee of either compliance or
21-17 noncompliance is binding in a grievance proceeding, but may be
21-18 offered as evidence.
21-19 (k) If a change of circumstances occurring subsequent to the
21-20 committee's evaluation of an advertisement or written communication
21-21 raises a substantial possibility that the advertisement or
21-22 communication has become false or misleading as a result of the
21-23 change in circumstances, the lawyer shall promptly refile the
21-24 advertisement or a modified advertisement with the committee with
21-25 an explanation of the change in circumstances and a fee of $20.
21-26 Sec. 81.206. COMMUNICATION OF FIELD OF PRACTICE. (a)
21-27 Except as provided by this section, a lawyer may not communicate
22-1 the fact that the lawyer is a specialist.
22-2 (b) A lawyer admitted to engage in patent practice before
22-3 the United States patent and trademark office may use the
22-4 designation "patents," "patent attorney," "patent lawyer," or any
22-5 combination of those terms. A lawyer engaged in trademark practice
22-6 may use the designation "trademark," "trademark attorney,"
22-7 "trademark lawyer," or any combination of those terms. A lawyer
22-8 engaged in patent and trademark practice may hold himself out as
22-9 specializing in "intellectual property law," "patents, trademarks,
22-10 and related matters," or "patent, trademark, copyright law, and
22-11 unfair competition," or a combination of those terms.
22-12 (c) A lawyer who has been awarded a certificate of special
22-13 competence by the Texas Board of Legal Specialization in the area
22-14 advertised shall state with respect to each area, "board certified
22-15 (area of specialization)--Texas Board of Legal Specialization."
22-16 (d) A lawyer who has not been awarded a certificate of
22-17 special competence by the Texas Board of Legal Specialization in
22-18 the area advertised shall state with respect to each area, "not
22-19 certified by the Texas Board of Legal Specialization." If the area
22-20 of law advertised has not been designated as an area in which a
22-21 lawyer may be awarded a certificate of special competency by the
22-22 Texas Board of Legal Specialization, the lawyer may also state, "no
22-23 designation has been made by the Texas Board of Legal
22-24 Specialization for a certificate of special competence in this
22-25 area."
22-26 (e) The statements referred to in Subsections (b) and (c)
22-27 shall be displayed conspicuously so as to be easily seen or
23-1 understood by a consumer.
23-2 Sec. 81.207. FIRM NAMES AND LETTERHEADS. (a) A lawyer may
23-3 not use a firm name, letterhead, or other professional designation
23-4 that violates Section 81.201.
23-5 (b) A lawyer in private practice may not practice under a
23-6 trade name, a name that is misleading as to the identity of the
23-7 lawyer or lawyers practicing under the name, or a firm name
23-8 containing names other than those of one or more of the lawyers in
23-9 the firm, except that the names of a professional corporation or
23-10 professional association may contain "P.C." or "P.A." or similar
23-11 symbols indicating the nature of the organization. If otherwise
23-12 lawful a firm may use as or continue to include in its name the
23-13 name or names of one or more deceased or retired members of the
23-14 firm or of a predecessor firm in a continuing line of succession.
23-15 This subsection does not prohibit a married woman from practicing
23-16 under her maiden name.
23-17 (c) A lawyer may not advertise under a trade or fictitious
23-18 name, except that a lawyer who actually practices under a trade
23-19 name as authorized by Subsection (b) may use that name in an
23-20 advertisement. A lawyer who advertises under a trade or fictitious
23-21 name violates this subsection unless the same name is the law firm
23-22 name that appears on the lawyer's letterhead, business cards,
23-23 office sign, fee contracts, and with the lawyer's signature on
23-24 pleadings and other legal documents.
23-25 (d) A law firm with offices in more than one jurisdiction
23-26 may use the same name in each jurisdiction, but identification of
23-27 the lawyers in an office of the firm must indicate the
24-1 jurisdictional limitations on those not licensed to practice in the
24-2 jurisdiction in which the office is located.
24-3 (e) The name of a lawyer occupying a judicial, legislative,
24-4 or public executive or administrative position may not be used in
24-5 the name of a law firm, or in communication on its behalf, during
24-6 any substantial period in which the lawyer is not actively and
24-7 regularly practicing with the firm.
24-8 (f) A lawyer may not state or imply that the lawyer
24-9 practices in a partnership or other organization unless the lawyer
24-10 does practice in a partnership or other organization.
24-11 SECTION 5. (a) The change in law made by Sections 1 and 2
24-12 of this Act applies only to an offense committed on or after the
24-13 effective date of this Act. For purposes of this section, an
24-14 offense is committed before the effective date of this Act if any
24-15 element of the offense occurs before that date.
24-16 (b) An offense committed before the effective date of this
24-17 Act is covered by the law in effect when the offense was committed,
24-18 and the former law is continued in effect for this purpose.
24-19 SECTION 6. Subchapter I, Chapter 81, Government Code, as
24-20 added by this Act, applies only to communications made on or after
24-21 the effective date of this Act.
24-22 SECTION 7. This Act takes effect September 1, 1993.
24-23 SECTION 8. The importance of this legislation and the
24-24 crowded condition of the calendars in both houses create an
24-25 emergency and an imperative public necessity that the
24-26 constitutional rule requiring bills to be read on three several
24-27 days in each house be suspended, and this rule is hereby suspended.