Willey v. Harris Cnty. Dist. Attorney

• Citation: 27 F.4th 1125
• Decision Date: 11 March 2022
• Docket Number: No. 21-20138,21-20138
• Parties: Andrew WILLEY, Plaintiff—Appellant, v. HARRIS COUNTY DISTRICT ATTORNEY, Defendant—Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

27 F.4th 1125

Andrew WILLEY, Plaintiff—Appellant,

v.HARRIS COUNTY DISTRICT ATTORNEY, Defendant—Appellee.

No. 21-20138

United States Court of Appeals, Fifth Circuit.

FILED March 11, 2022

Charles Gerstein, Gerstein Harrow, L.L.P., Washington, DC, Nathan Fennell, Texas Fair Defense Project, Austin, TX, for Plaintiff—Appellant.

Meagan T. Scott, Harris County District Attorney's Office, Houston, TX, Scott Anthony Durfee, Assistant District Attorney, Pearland, TX, for Defendant—Appellee.

Before Jones, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Attorney Andrew Willey wants to solicit legal work from already-represented criminal defendants in Harris County. But he fears that would violate a Texas anti-barratry law, so he sued for a preliminary injunction prohibiting the Harris County District Attorney from enforcing that law against him. The district court denied an injunction. Willey appeals, urging that prosecuting him for soliciting work from represented defendants would violate his First Amendment rights to free speech and association. We affirm because Willey has not shown that his claim is likely to succeed.

I.

A.

Willey is motivated by his belief that appointed criminal defense attorneys in Harris County are pervasively inadequate, largely because they are overburdened. Willey 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 criminal defense attorney in Harris County ("Doe") because Willey believed Doe was especially overburdened.

Willey created two forms to distribute to Doe's clients. The first was titled "Representation Affidavit." Spanning eight pages and seventy-four questions, the document solicited information about Doe's performance. It provided for affiants to express their "wish" that Doe be replaced and to declare, "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." It explained that Willey would not become "undersigned Defendant's attorney of record" or "replace the court-appointed attorney." Instead, Willey's representation would occur only on any "motion for new court-appointed counsel, motion of rehearing as such, and writ(s) of mandamus to enforce such motions." And Willey would not be compensated.

Willey enlisted "volunteer investigators" to identify Doe's appointed clients. With the volunteers' help, he distributed his forms to 22 of Doe's clients. That prompted the families of two of those clients to contact Doe to ask whether he was still their relatives' lawyer. Those inquiries alerted Doe to Willey's activities. Doe notified Harris County District Judge Amy Martin, who was presiding over criminal cases brought against some of the contacted defendants.

After two attempts to persuade Willey to stop contacting Doe's appointed clients, Judge Martin convened an "emergency hearing." There, she recounted an earlier conversation with Kermit Johnson, one of the defendants whom Willey had contacted. Judge Martin explained, and Johnson agreed, that Johnson had asked to speak with the court because Willey had visited him in jail. Johnson further agreed that, during Willey's visit, Johnson wasn't "feeling really good," had "memory issues," and had taken psychotropic medication. Johnson did not wish to speak with Willey, but the jail staff forced him to attend the meeting. Then, Willey induced him to sign "some documents," presumably the forms described above. Johnson later asked to see those documents, but Willey refused.

Judge Martin explained that Johnson "has a fairly serious illness" and said, "If whoever interviewed him could not figure out that he was under the influence of psychotropic meds, that person has no business representing indigent criminal defendants." She told Willey it was "a very, very bad idea to continue to try and solicit business, whether paid or unpaid[,] from defendants he knows are represented," particularly by court-appointed attorneys. She promised Johnson that Willey would not contact him again. She warned that if Willey continued his behavior, she would "not be nearly so nice."

Willey eventually promised to stop contacting Doe's clients. He interpreted Judge Martin's comments as a threat that he would face criminal sanctions if he continued soliciting legal work from represented defendants. So, he put his plans "on hold."

B.

Texas forbids some forms of what it calls "Barratry and Solicitation of Professional Employment."¹ TEX. PENAL CODE § 38.12 (West 2013). Attorneys may not contact represented parties "with the intent to obtain professional employment" relating to legal representation in "a specific matter." Id. § 38.12(d).² An attorney may violate Section 38.12(d) even if he seeks no economic benefit. See id. So Willey fears that even solicitations directed at limited, pro bono representation are forbidden.

Willey brought this pre-enforcement suit³ against the D.A. and requested preliminary and permanent injunctions forbidding his prosecution under Section 38.12. After a hearing, the district court denied Willey's motion for a preliminary injunction.⁴ Willey appeals that denial.

Willey maintains that he is entitled to a preliminary injunction because his desired conduct is protected by the First Amendment. Since his exercise of constitutional rights is restrained, he says he is suffering an irreparable injury, and the balance of equities and the public interest favor injunction. He urges that he is likely to succeed on the merits because Texas has criminalized protected political speech and association, warranting strict constitutional scrutiny. Willey reasons that the law cannot survive strict scrutiny because it is under-inclusive in protecting any compelling state interest.

II.

We review the denial of a preliminary injunction de novo because determining whether "free speech rights have been infringed presents a mixed question of law and fact." Byrum v. Landreth , 566 F.3d 442, 445 (5th Cir. 2009). We apply the familiar standard for assessing the propriety of a preliminary injunction: Willey must show "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the defendant; and (4) that the injunction will not disserve the public interest." Opulent Life Church v. City of Holly Springs , 697 F.3d 279, 288 (5th Cir. 2012). We do not reach the last three factors because Willey has not shown substantial likelihood that "the challenged law is incompatible with the First Amendment." Texans for Free Enter. v. Tex. Ethics Comm'n , 732 F.3d 535, 538 (5th Cir. 2013).

III.

A.

Willey says he wishes to offer to represent indigent defendants pro bono for religious and political reasons.⁵ He thus claims to be "employing constitutionally privileged means of expression to secure constitutionally guaranteed civil rights" rather than "procur[ing] remunerative employment."⁶ For this appeal, we assume, as do both parties, that application of the anti-barratry law to his conduct must withstand strict constitutional scrutiny. See In re Primus , 436 U.S. 412, 432, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978).⁷ Under that standard, the D.A. must prove that the "restriction furthers a compelling interest and is narrowly tailored to achieve that interest."⁸

The Supreme Court has twice applied strict scrutiny to state attempts to restrict non-commercial attorney solicitation. First, in Button , 371 U.S. at 434, 83 S.Ct. 328, the Court held it unconstitutional for Virginia to prohibit NAACP lawyers from advising potential litigants of their rights and referring them "to a particular attorney." Virginia failed to demonstrate a compelling interest "in the form of substantive evils flowing from petitioner's activities." Id. at 444, 83 S.Ct. 328. Second, in Primus , 436 U.S. at 414–21, 98 S.Ct. 1893, the Court held it unconstitutional for South Carolina to discipline an attorney for advising a potential litigant that the ACLU would represent her pro bono. The state pointed to the "substantive evils of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, and lay interference that potentially are present in solicitation of prospective clients by lawyers." Id. at 426, 98 S.Ct. 1893. The Court did not deny that preventing those harms was a compelling interest but explained that the state had to prove that "any of [those] substantive evils ... were present in this case." Id. at 433, 98 S.Ct. 1893. The Court was careful not to "foreclose carefully tailored regulation that does not abridge unnecessarily" freedom of speech or association. Id. at 439, 98 S.Ct. 1893.

Button and Primus set the table, but neither controls the outcome. The subjects of Willey's solicitations were already represented. That distinction implicates interests different from the anti-solicitation rationales advanced previously.⁹ Whether the First Amendment permits a state to criminalize Willey's desired conduct is a question of first impression. Button and Primus help answer that question by establishing three principles: (1) the work Willey allegedly wishes to do is constitutionally protected speech and association; (2) restrictions on that conduct are strictly scrutinized; but (3) restrictions are permissible where carefully tailored to prevent substantive evils that a state proves are present in a particular case. Restrictions on speech rarely withstand strict scrutiny, but strict scrutiny is not "strict in theory, fatal in fact."¹⁰

B.

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"...