Barratry - Explanation
Filing Frivolous Actions to Benefit from Legal Fees
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What is Barratry?
Barratry describes an unlawful act performed by a lawyer who provokes a conflict or otherwise invites the filing of a lawsuit so he or she can profit from the legal fees.
It usually involves an unfounded (frivolous) claim being filed so the attorney can collect payment from clients.
In the United States, barratry is illegal. An attorney perpetrator is liable to a criminal penalty and disciplinary action by the state bar, which would generally put a lawyer at risk of disbarment.
References for Barratry
Academic Research on Barratry
- Much Ado About Barratry: State Regulation of Attorneys' Targeted Direct-Mail Solicitation, Laroe, K. A. (1993). . Mary's LJ, 25, 1513.LaRoe discusses the limitations on attorney solicitation as an entire legal profession and within Texas. The author also addresses the first amendment restrictions on the State's control of targeted direct-mail solicitation. After the Shapero vs. Kentucky Bar Association, two states made failed attempts to limit a lawyer's targeted solicitation. LaRoe presents a proposal for constitutional regulatory options, including the requirement of substantial state interest.
- Barratry as a Covered Risk in Marine Insurance: Problems and Perspectives, Pitts, G. R. (1983). J. Mar. L. & Com., 14, 131. Pitts discusses how the standards of the law are principals which can be applied generally and defining them is something which continues long after those general standards have become common law, which was discussed by O. Holmes. The laxity of which Holmes described, according to Pitts, is hard to conceptualize despite the "familiar verbal formulae." The author believes that the same thing concerns the legality of barratry as a covered liability by marine insurance policies, which coverage has existed since the eighteenth century.
- Barratry by Exceeding the Warranted Navigational Limit of the Insurance Policy, Wooldridge, J. T. (1993). J. Mar. L. & Com., 24, 357. Wooldridge cites the Marine Insurance Act of 1906 which defines barratry as including all wrongful acts that are willfully committed by a crew or master against the charterer or vessel owner. The U.S. has never summarized the law of marine insurance and has accepted the English Marine Insurance Act of 1906 in the American courts. The Act identifies barratry as a marine peril. For it to be a covered peril, it must specifically be mentioned by the insurance policy.
- Non-Traditional Class Action Financing and Traditional Rules of Ethics: Time for a Compromise, Northway, S. (2000). Geo. J. Legal Ethics, 14, 241. According to Northway, recent years have shown a growing dissatisfaction with the standard form of class action financing, i.e., the contingency fee. The federal class action rule is needed to settle many small claims since, without it, countless people with injuries would lose out because the cost of litigation is higher than the potential amount of their specific claim. As a result of this discontent, attorneys have come up with a wave of creative class action financing. The authors point out that class action lawyers must be held accountable to the same code of ethics as all lawyers.
- Crime of Barratry-Criminal Responsibility for a Branch of Professional Responsibility, The, Reamey, G. S. (1990). Tex. BJ, 53, 1011. Reamey informs that barratry is not merely misconduct that is a breach of professional etiquette or an infraction of disciplinary rules but indeed a crime. The author discusses the history of barratry in Texas. In 1876, no attorney had ever been convicted of barratry, but Texas saw fit to establish it as a crime. There was no punishment initially, but by 1901, the crime warranted disbarment and criminal prosecution.
- Ethics: Lawyering and Professionalism, Spivey, B. A. (2001). Mary's LJ, 33, 721. Spivey discusses common law and Texas barratry law from its adoption to its codification. The author explains the attorney's rules and defines the crime. Spivey goes on to talk about the originating of the lawyer-client relationship, explicitly addressing the requirement of written agreements, contingent fee cases, clear communication, among other areas and goes over the management of the relationship.
- Solicitation of Legal Services--A Crime, Warren, E. T. (1961). Solicitation of Legal Services--A Crime. Ohio St. LJ, 22, 691. Warren is a member of the Negligence Law Committee and writes about the "Anti-Solicitation Bill," which discusses how the penalty for solicitation of legal services would be no less than $100 and no more than $1,000 or imprisonment for up to 30 days, or both. The author points out that the bill applies to not just individuals licensed to practice law but to all members of the general public who solicit legal services.
- Legal ethics: the problem of solicitation, Luther III, M. J. (1958). Legal ethics: the problem of solicitation. American Bar Association Journal, 554-591. Luther discusses in this article how the profession of law and members of the Bar are sworn to a high code of conduct and allegiance. The author acknowledges how there is always a few attorneys who neglect their position as members of a profession and engage in acts, such as solicitation, which is conflicting with their obligation to their fellows, the public, and the courts.
- Legal Ethics: The Distinctions Between Attorney Advertising and Attorney Solicitation, Conrey, M. E. (1982). Legal Ethics: The Distinctions Between Attorney Advertising and Attorney Solicitation. Washburn LJ, 22, 149. This article discusses how since the U.S. Supreme Court approved price advertising for regular legal service in 1977 following Bates vs. State Bar of Arizona, attorney solicitation and advertising has been in a "state of flux." According to the ruling of more recent cases, states are not permitted to restrict a lawyer's advertising unless it is misleading, deceptive or discordant with substantial state interest.
- Barratry-A Comparative Analysis of Recent Barratry Statutes, Rhine, W. (1964). Barratry-A Comparative Analysis of Recent Barratry Statutes. DePaul L. Rev., 14, 146. The author discusses common law barratry and how it has been defined as an offense of regularly stirring up or exciting quarrels and suits at law or otherwise, in the early 1940s. The author also explains maintenance which is when someone acts as an assistant in an action or suit but with no interest of their own. The author continues the discussion with a definition of champerty which is defined as maintenance along with an agreement that if the suit was successful, then the subject matter could be shared. The author acknowledges that prosecutions of barratry, maintenance, and champerty are uncommon in the United States and England.
- Causation Issues in Barratry Cases, Tsichlis, V. S. (2004). Causation Issues in Barratry Cases. J. Mar. L. & Com., 35, 255. This article aims to discuss the causation in barratry, which the author points out has been a troubling matter for academics and courts for almost a century. The purpose of the article is to examine the scope of marine insurance law and to provide commentary and not a solution to all its inherent problems.