Texas ban on soliciting others’ clients beats attorney’s appeal

A lawyer alleging that a Texas law that bars attorneys from soliciting work from represented clients violates his First Amendment rights has failed to convince the Fifth Circuit to reinitiate his lawsuit.

Andrew Willey sued for a preliminary injunction restraining the Harris County prosecutor from enforcing the state’s anti-barratism law to prevent attorneys from contacting previously represented parties about potential representation. Willey had previously targeted clients of a frequently named criminal defense attorney in the same county, home of Houston. Willey said he hopes to provide services to clients who change attorneys if they have the funds to do so.

The U.S. District Court for the Southern District of Texas denied the injunction, and the U.S. Court of Appeals for the Fifth Circuit upheld it, finding that Willey had failed to show that his claim was likely to succeed.

The court rejected Willey’s argument that the law cannot survive the strict scrutiny required in the state of Texas, and said an injunction was not warranted because the law appears to be “narrowly fit” for the very conduct in which Willey hopes to engage. , and because of Texas’ interest in preserving attorney-client relationships.

“The DA is concerned that Willey’s solicitations, combined with his questionnaire and representation agreement, will damage the relationship of indigent defendants with their court-appointed attorney,” the opinion reads. “We share this concern and conclude that preventing such confusion is a compelling state interest.”

The court added that the law goes no further than necessary to protect this state interest.

The appeals court also rejected Willey’s offer to reassign the case to another district judge on remand. The judge made a minor error in misidentifying Willey’s organization, but it was part of a relevant investigation and did not show bias for an objective observer, the appeals court said.

Judge Catharina Haynes joined in the decision. Justice Edith H. Jones wrote a concurring opinion on the constitutional requirement to provide free defense counsel to indigent defendants.

Willey is represented by Gerstein Harrow LLP and the Texas Fair Defense Project.

The case is Willey v. Harris County DA, 5th Cir., No. 21-20138, 3/11/22.

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