First, I want to make clear that I know Ron Reynolds and consider him to be a friend.
With these facts being understood, I think that this case has some problems. According to Professor Turley there are some first amendment issues that will have to be litigated if this case goes to trial. http://jonathanturley.org/2012/04/27/texas-state-representative-arrested-for-barratry/
it is the classic ambulance chasing allegation, though arrests remain rare. There are signs in the courthouse warning that barratry is a crime. Recently, the United States Court of Appeals for the Fifth Circuit ruled in McKinley v. Abbott, 643 F.3d 403 (5th Cir. 2011), addressed the statute. Notably, that case also involved the limitation on using chiropractors of accident victims — a popular avenue for acquiring clients who increasingly go to chiropractors with their injuries. The Court recognized that personal solicitation like that covered by the Barratry Statute is commercial expression protected by the First Amendment. 21 A restriction on commercial expression must survive the intermediate scrutiny articulated by the Supreme Court in Central Hudson.” On the second prong of the test, the Court held:
The record contains ample evidence that the harm caused by solicitation of accident victims by chiropractors within the first 30 days after an accident is real. The state produced testimony from the Director of Enforcement at the Texas Board of Chiropractic Examiners that the Board had received a large number of complaints from accident victims concerning solicitation activities of chiropractors directly following the victims’ automobile accidents. Additionally, the state introduced anecdotal testimony from accident victims about solicitation directly after an automobile accident and the stress caused by those solicitations. There was also expert testimony about the stress disorder many people suffer for up to a month after a traumatic event, which can lead to cognitive dysfunctions in information processing and decision-making. This is sufficient evidence to demonstrate that the harm is real. And, we conclude that a rule prohibiting solicitation for a 30 day period materially alleviates that harm by preventing the harm identified by the state for the amount of time needed.
The Reynolds case is likely to explore similar issues of when contacts cross the line into barratry and to what extent such speech is protected under the first amendment.
I note that trial attorneys are the ones being targeted here and in this case the first African American to represent Fort Bend County in a century is the subject of this witchhunt. Again, I admit that I have a bias in this matter in that I know Ron and consider him to be a friend
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