Attorney Andrew Willey wants to solicit legal work from already-represented criminal defendants in Harris County. He claims to be motivated by the belief that appointed criminal defense attorneys in Harris County are pervasively inadequate, largely because they are overburdened. He planned to help by representing affected indigent defendants pro bono, but solely to challenge their existing attorneys’ adequacy. He initially targeted the clients of a frequently-appointed John Doe criminal defense attorney because he believed that Doe was especially overburdened. Willey created two forms to distribute to Doe’s clients: a ‘Representation Affidavit’ including seventy-four questions over eight pages regarding Doe’s performance, and providing for affiants to express their wish that Doe be replaced, while declaring that “I cannot afford to hire a different attorney and am stuck with Doe merely because I am too poor to afford anyone else.” The second form was titled ‘Limited Scope Of Representation Agreement’ which explained that Willey would not become undersigned Defendant’s attorney of record or replace the court-appointed attorney, but would occur only on any motion for new court-appointed counsel; the form also explained that Willey would not be compensated.
After several defendants appeared confused by the communications, Willey promised to stop contacting Doe’s clients, under threat of potential sanctions by the State Court. Willey then brought a pre-enforcement suit against the District Attorney requesting preliminary and permanent injunctions against his prosecution under Texas Penal Code Section 38.12 (Barratry and Solicitation of Professional Employment). The injunction was denied by the District Court, and the U.S. Fifth Circuit affirmed.
“Willey says he wishes to offer to represent indigent defendants pro bono for religious and political reasons. He thus claims to be employing constitutionally privileged means of expression to secure constitutionally guaranteed civil rights, rather than procuring remunerative employment.
“For this appeal, we assume, as do both parties, that application of the anti-barratry law to his conduct must withstand strict constitutional scrutiny. Under that standard, the D.A. must prove that the “restriction furthers a compelling interest and is narrowly tailored to achieve that interest….
“The D.A. advances three compelling interests to justify the restriction: (1) preserving the attorney-client relationship from damaging interference, (2) avoiding unnecessary delays and confusion in court proceedings resulting from the solicitations, and (3) reasonable regulation of the legal profession. We address only the state’s interest in preserving attorney-client relationships because it sustains application of the antibarratry statute to Willey’s conduct at this preliminary stage.
“The D.A. fears that Willey’s solicitations, combined with his questionnaire and representation agreement, will damage indigent defendants’ relationships with their court-appointed counsel. She maintains that Willey confused at least two defendants about who was representing them. We share that concern and conclude that preventing such confusion is a compelling state interest…. Interests previously held compelling enough to satisfy strict scrutiny include safeguarding public confidence in the fairness and integrity of the nation’s elected judges, combating terrorism, protecting election integrity, remedying the effects of past unconstitutional race discrimination, and attaining a diverse student body in post-secondary education. The question is whether preventing interference with indigent defendants’ understanding of their representation belongs on that list…. The most analogous state interest that has been evaluated by the Supreme Court is that in promoting public confidence in the integrity of the judiciary. A state’s compelling interest in the integrity of its election process is also relevant. Those interests share a concern with the fairness and legitimacy of government. A state has no higher interest. Little else matters if a state cannot persuade its citizens that it wields legitimate authority. That is why states have been permitted to limit expression to the extent necessary to ensure that their judiciaries are impartial and their elections are free and fair. The right to effective assistance of counsel has comparable gravity. Such assistance is fundamental and essential to fair trials and necessary to produce just results in our adversarial system. If attorney solicitation impedes effective assistance as previously discussed, a case may be adjudicated following an incomplete consideration of the merits of the charge. Even if that error is ultimately corrected on review, courts’ ability to do justice is undermined in public perception and reality. So Texas’s interest is ultimately about the fairness of its criminal adjudications. That interest ranks alongside the others concerning a state’s ability to ensure the legitimacy of its coercive authority. Since those interests are of a piece, we need not independently balance Texas’s asserted interest against Willey’s First Amendment rights. The Supreme Court has already determined that such interests can subordinate freedom of speech if necessary.”
Finding that the statute in question was narrowly tailored to the interests, the Court emphasized that the state’s interest “is in preventing confusion that damages relationships between appointed counsel and indigent defendants. The potential for confusion is uniquely present where an attorney approaches a represented defendant and offers to become his lawyer, even for a limited purpose. If, as Willey suggests, an attorney merely approaches represented defendants and explains to them the deficiencies of their current lawyers, those defendants are likely to raise those concerns with their current lawyers or a court. That would do little or no harm. But if Willey induces them to sign forms filled with legalese, including one titled Limited Scope of Representation Agreement, they likely will think he represents them generally and may withhold vital information from their counsel of record, leading to the harms already described. No matter how carefully drafted, Willey’s language limiting the scope of his representation is not likely to be communicated adequately to each of the recipients of his solicitations. Those untrained as lawyers may fail to appreciate the difference between ‘writ(s) of mandamus to enforce such motions’ and other forms of representation. All they are likely to hear is that their old lawyer was no good, so they have a new one. That is not conjecture. As Primus requires, the state has demonstrated, as far as possible at this preliminary stage, that Willey’s conduct caused that precise type of confusion. Family members of two of the twenty-two defendants whom Willey contacted were confused about whether Doe still represented them. Willey provided his forms to Kermit Johnson against his will, in jail, late at night, while he was struggling with mental illness and under the influence of psychotropic medication. It is hard to think of a better way to confuse a defendant about who represents him.”
Willey v. Harris County District Attorney, No.21-20138, 2022 WL 765000 (5th Cir. March 11, 2022).