Harris County grand jury selection begins at NRG Arena
(Houston Chronicle — July 6, 2020)

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By Ed McClees and Mark Thiessen

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds.  This bond paperwork then becomes public record.  In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer.  It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world.  Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents.

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.”  It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry.  Tex. Pen. Code § 38.12(b)(1-2).   The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].”  Tex. Pen. Code § 38.12(b)(3).[1]

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.”  Tex. Pen. Code § 38.12(i).

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.”  Tex. Disc. R. of Prof. Cond. 7.03, com. 1.  The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.”  Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact … seek professional employment concerning a matter arising out of a particular occurrence or event … from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…”

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.”  Tex. Disc. R. of Prof. Cond. 7.03(f).  Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note, the Bar will never give a lawyer clearance over the phone.  All advertisements must be submitted in writing and if approved will be approved by letter with a green stamp on it.  Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved.  Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs.  See Tex. Disc. R. of Prof. Cond. 7.05.  The font, color, material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years.  However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text or direct phone call.  The same rule that governs mail outs also governs electronic or digital solicitations.  Id.

We are aware of a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message, and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.”  Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code.  Tex. Occ. Code § 952.101.  Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity.  Tex. Occ. Code § 952.102.

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals.  Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message.  Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was send for emergency purposes.  While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime in order to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number that has not contacted you first or asked you through some sort of submission, to contact you.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry.  Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text was to mimic the requirements established in the Rules, would it be ethical?  As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability.

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit.  This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers.

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

1. Direct Mail Outs don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even land lines.  Many subscribers must pay for call minutes or data used for texting.  Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers.  The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
3. A person’s cell phone is a greater invasion of privacy than a land line. In the past municipalities provided phone books which gave specific addresses or names for landline numbers.  Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address.  Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy.  Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Disc. R. of Prof. Cond. 7.03, comm. 1.  An unsolicited text message can reach a prospective client literally the minute after they get out of jail, when that client is particularly vulnerable.
5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases.  See Penal Code § 38.12(d)(2)(A).  Shouldn’t people accused of crimes, with all of the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar.  This article is not intended to encourage grievances, prosecution, or civil lawsuits;  rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients.  Technology may be evolving, but the basics of law remain the same.  Remember, pigs get fat, hogs get slaughtered.  If you have a new way to market, get it approved.  The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

[1] Lawyers should be weary of lawyer referral services, which is discussed in more detail in another section.

By Graham Sutliff

The Stay-At-Home and Shelter-In-Place Orders issued across the country have presented unique challenges in many forms.  For litigators, these challenges have required an industry that is resistant to change to adapt quickly and dramatically in order to continue to fulfill our obligations to our clients and the legal system.   We commend judges, counsel, clients, those in the legal industry, and everyone else who is taking part in learning and mastering these virtual substitutes, for continuing to innovate and keep the wheels of justice moving.

Video conferencing has become the new norm for all types of proceedings throughout Texas and the United States.  In Texas, the Office of Court Administration (OCA) secured a Zoom contract and a license is available to all State of Texas judges. Additionally, the OCA recommends that most non-essential proceedings, except for jury trials, be conducted remotely. While the means for conducting proceedings has been given, the legal community is now faced with handling the logistical details of how to effectively and professionally participate in a Zoom proceeding. Several best practices have emerged to help you present your case in the best manner.

First Things First–Setting Up Zoom For Your Practice

One of the main reasons why Zoom seems to be such a popular video conference option is its cost-effectiveness. Zoom has a free option that provides a number of features, and its subscription service is relatively inexpensive (i.e. $149.90 for an annual, single license).  In comparison, competitors such as GoToMeeting do not offer any type of free plan.

Installing Zoom is extremely easy and user-friendly. A web browser client is downloaded whenever you start or join your first Zoom meeting. On the Zoom website, any number of plugins or extensions can be installed so that Zoom can be run from applications such as Google Chrome, Microsoft Outlook, or Skype for Business. Zoom can also be run from a mobile device, such as a tablet or smartphone. As might be expected, running Zoom from a computer with a webcam or a laptop provides a richer experience over using it on a tablet or smartphone. A smartphone should only be used as a last resort.

As Always, Check for Local Rules

Before appearing in a proceeding, you should also check with the specific rules of the court. Different judges will have their own preferences on topics such as mute procedures, whether or not recording is allowed, and how to submit evidence. Additionally, as judges gain more experience with Zoom, those preferences may change over time. For instance, the 345th District Court issued procedures that include a rule about muting when not speaking and a detailed procedure on how to submit exhibits. In comparison, Judge Kyle Carter includes in his Court Decorum rules the following: “Mute Button When You Are Not Speaking, Identify Yourself Each Time You Speak, and Recording is Prohibited.” These rules may seem strange or arbitrary, but they are often the result of some surprising discoveries about Zoom. For instance, many courts are setting Zoom videoconferences to private, utilizing breakout rooms and keeping witnesses in virtual waiting rooms. This has become a necessity because of Zoombombing (a form of hacking).  Recordings are generally discouraged because the only official record of a court proceeding should be the one produced by the Court Reporter. Additionally, several courts are advising that chats be avoided altogether or prohibiting private chats. This is in response to the discovery that messages that were sent in a private, person-to-person mode, can actually be viewed by anyone who downloads the transcript from Zoom.

Three Ways to Improve your Presentation

1. Backgrounds

It is important to have a clean and professional looking background when engaging via Zoom. This is necessary for both depositions and court proceedings since deposition recordings may be introduced later during a hearing, and court proceedings are often livestreamed to YouTube or Facebook to ensure the public has access under the Open Courts Provision of the Texas Constitution. You don’t want people thinking about what is going on behind you and not listening to what you have to say.

With this in mind, you have several options.  You can look for an organized, clutter-free space in your home that can be your background.  Alternatively, as a way to improve your presentation or the presentation of your witness, you can use a virtual background through Zoom.  For depositions, assuming it is your witness, be sure to give some thought about the witness’ background.

If you want to use a virtual background, you need to test it to see if the space you want to use will need a green screen. A cluttered background makes it difficult for the technology to differentiate you from what is behind and around you.  In this situation, you will need a green screen to use a virtual background.  There are many options for purchasing a green screen online, but you can also purchase inexpensive options like a green poster board or make your own screen by painting a sheet or piece of cardboard.  Also, be sure that your clothes are not the same color as your background (e.g. green shirt with a green background) or you will become the invisible person.

The process of adding a virtual background is very easy and you can add anything you think would look the best.  To help, we have created a photo gallery of professional, license-free images that you can download and use for yourself.  Click here.  We have also set out instructions on how to download and upload the images to your Zoom account.

2. Submitting and Presenting Documents

For court proceedings, each court will likely have its own rules about how to present documents. Some courts have used Dropbox to allow attorneys to share evidence, but many others prefer email. Be sure to call the Court prior to your hearing to determine how the Court handles the presentation of evidence.  Some judges can manage the exhibits themselves and share their screen on Zoom when exhibits are used. If, on the other hand, you are required to present your exhibits, then you need to know how to share your computer screen and how to direct people’s attention to the parts you want.  An app we find helpful in the presentation of evidence is Snagit.  This app allows you to easily cut and paste from documents and zoom in easily.

When it comes to depositions, we suggest coordinating with the videographer beforehand so they can verify that they have high-quality, clean copies and that they will be able to zoom in on relevant portions of exhibits as needed.  You should also familiarize yourself with Zoom’s ability to share your computer screen so you can present documents on the fly during the deposition.

3. Technical Capabilities

In order to make sure you have high-quality video and audio, you will need a strong wired or WiFi connection, so you may need to experiment in different parts of your home to find the strongest signal. Attorneys should also try to find a quiet place where ambient noise will be at a minimum (think rooms with carpet or rugs and rooms with no echo). If available, using ear buds with a built-in microphone provides a better listening experience, reduces background noise and allows others to hear you better. With respect to lighting, you want the room to be well lit.  Lamps are helpful and, when available, should be placed evenly with or a little behind your camera.  Avoid having bright lights in the background because such light will create problems for the camera.  As for the location of the camera, try to have it eye-level so that it appears that you are looking at the other individuals on the conference.

Even with the best preparation, it can be difficult to anticipate how your Zoom video conference will behave on the day that you need it. Associate Judge Aurora Martinez Jones suggests that you try to avoid Zoom “traffic,” if possible, by requesting or setting a start time that is mid-morning or later. She also recommends that you have a number of backup devices available in case your audio does not work or if you need to have private attorney-client communication. If you do end up using multiple devices, make sure to label them all properly when logging into Zoom using your first and last name so that they can be easily identified by the host of the videoconference. If only a phone is used, provide the host with your phone number ahead of time. If you are the host of a Zoom video conference, it is recommended that you ask all participants to log in early to iron out any technical difficulties.

Judge Dimple Malhotra also has a number of suggestions to ensure successful Zoom video conferences. If there is time before the official start time of the hearing, be sure to turn your video off until it is needed. She also encourages attorneys to be aware of issues of access. Not all participants have the capability to use Zoom. Some clients may not have a compatible device or internet access, and you should be prepared to come up with alternative arrangements.

Proper Preparation—Be Sure to Test Your Setup and System Before Any Hearing or Deposition

After installing Zoom, users should test out the functions in Zoom by going through the various options and setting up a videoconference with a friend or colleague. When setting up this test, be sure to record the test session so you can go back and watch the test so that you will understand what others will see.  You want to familiarize yourself with the basic functions such as different view options, mute, and chat. Depending on the device used and the form of Zoom interface, certain features may not be available. For instance, some devices may not have the video capabilities to utilize virtual backgrounds. Finally, attorneys should practice working with the different video and audio options, as well as how to use screen sharing and documents.

With these best practices in mind, combined with patience and learning from experience, Zoom can be a powerful tool to help courts and attorneys continue their important work.

About the Author

Graham Sutliff is the co-founder of Sutliff & Stout, Injury & Accident Law Firm.  Graham is Board Certified in Personal Injury Trial Law, and he has been actively trying personal injury cases for over fifteen years.