513 S.W.3d 582
Tex. App.2016Background
- Darren Rice and Edwin Walker created Texas Law Shield (TLS), a legal-services retainer program marketed at CHL (concealed handgun license) classes; TLS employed registered non‑lawyer sales representatives and paid CHL facilities/instructors for applications submitted.
- Walker & Rice (a law firm) entered agreements to provide legal services to TLS members; later Walker withdrew and Walker & Byington succeeded as the contracting firm.
- Brad and Terri‑lyn Crowley sued, alleging TLS and associated attorneys committed civil barratry under Tex. Gov’t Code § 82.0651 by paying non‑lawyers to solicit clients at CHL classes; they sought class certification for similarly solicited attendees.
- The trial court granted summary judgment against some claims but certified a class focused on violations of Texas Disciplinary Rule 7.03(b) and (d), treating the primary common question as whether agreements to pay facilities for each application constituted illegal solicitation.
- Appellants appealed interlocutorily, arguing class certification was improper because individualized issues (e.g., whether each person was solicited, whether a contract was procured by the paid solicitation, and whether the prospective client sought the lawyer’s advice) would predominate.
Issues
| Issue | Plaintiff's Argument (Crowley) | Defendant's Argument (TLS/Rice et al.) | Held |
|---|---|---|---|
| Whether common issues predominate under Rule 42(b)(3) | Liability centers on common evidence: the defendants’ agreements to pay facilities per application; thus class treatment is appropriate | Individualized issues (whether each person was solicited, whether each contract was procured by that solicitation, and whether each person sought legal advice) will dominate and defeat predominance | Reversed: individualized issues predominate; class certification was an abuse of discretion |
| Interpretation of “procured as a result of” in § 82.0651(a) | Focus should be on defendants’ unlawful conduct, not individual causation for each contract | Plaintiffs must prove each contract was obtained as a result of prohibited solicitation | Court: “procured as a result of” requires showing each contract was obtained due to the unlawful solicitation (individualized causation required) |
| Whether solicitation under Rule 7.03(b) can be inferred solely from payment agreements | Payment-per-application agreements create a common basis to prove unlawful solicitation | Payment agreements prove entitlement to payment but do not prove that a facility or instructor actually solicited a particular class member | Court: Payment agreements alone are insufficient; fact‑specific inquiry into whether each class member was solicited is necessary |
| Effect of prospective‑client exception in Rule 7.03(a) on Rule 7.03(b) claims | The exception (client sought advice) is irrelevant to Rule 7.03(b) because (b) contains no ‘‘sought’’ limitation | Rule 7.03(b) must be informed by (a); if a prospective client sought advice, solicitation prohibition may not apply | Court: Rule 7.03(b) is informed by (a); whether a person sought advice is a fact‑specific inquiry that undermines commonality |
Key Cases Cited
- Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201 (Tex. 2007) (class‑certification standard; predominance must be rigorously applied)
- Southwestern Bell Tel. Co. v. Mktg. on Hold, Inc., 308 S.W.3d 909 (Tex. 2010) (Rule 42 requirements and factors for superiority/management)
- Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014) (statutory interpretation principles; give effect to every word)
- Neese v. Lyon, 479 S.W.3d 368 (Tex. App.—Dallas 2015) (civil barratry claim requires proof that contract was procured due to unlawful conduct)
- Kondos v. Lincoln Prop. Co., 110 S.W.3d 716 (Tex. App.—Dallas 2003) (individualized issues about consent defeated class certification in unsolicited‑fax context)
- Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996) (use of rule comments as guidance in interpreting disciplinary rules)