Barratry, Champerty, Maintenance, Oh My!
Original photo: National Geographic
Texas, it seems, has a problem with barratry. What, you may ask, is barratry? It is — or once was — a crime, a tort, and an act of professional misconduct. And if you were unclear about all that, you’re in good company. The former Associate Chief Justice of Ontario confessed in McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972 (ON CA) that, “I include myself among those who had never heard of the tort of barratry until I read the material on this motion.” He went on to explain:
[23] Barratry is related to, but clearly different from, champerty and maintenance. Barratry is defined in Black’s Law Dictionary, 7th ed. (St. Paul: West Publishing, 1999) as “[t]he offence of frequently exciting and stirring up quarrels and suits, either at law or otherwise”. According to Black’s, barratry is also “a crime in most jurisdictions”.
[24] By contrast, champerty refers to a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds. The difference between champerty and barratry appears to be that while champerty is purely self-interested, barratry requires the additional intent to harm the third person: “… if the design was not to recover his own right, but only to ruin and oppress his neighbour, that is barratry”. See Words and Phrases Judicially Defined, Vol. I (London: Butterworth & Co., 1943).
[25] Maintenance is further distinguished from barratry and champerty on the basis that it appears to be motivated by altruism. That is, it requires a person to “lay out money on behalf of another in suits at law to recover a just right, and this may be done in respect of the poverty of the party; but if he lends money to promote and stir up suits, then he is a barrator”. Words and Phrases, supra.
To put it crudely — and as it refers to the conduct of lawyers — barratry is ambulance chasing, champerty is contingency fees, and maintenance is relatively rare.
The Texas law (the text is here) is interesting not only for what it reveals about the business climate for lawyers but also because it provides for a civil remedy, creating a cause of action for persons harmed by the barratry, among whom are often, it would seem, lawyers who have had clients “stolen” away from them.
Contingency fees were permitted in Ontario, at least, as of 2004. The old crimes of B, C, & M were abolished in Canada some sixty years ago. And the existence of the torts is in doubt. (See Maureen Boldt v. The Law Society of Upper Canada, 2010 ONSC 3568.) I’m not well-enough plugged in to the roil of practice to know how things stand as regards unethical practice.
Barratry is implicit in much of the class action process south of the border, and not much less up here. It is most obvious in the class actions where few, if any, of the plaintiff class have suffered any injury of any type – let alone a compensable injury – so that the relief sought is disgorgement of revenue (profits) through the “waiver of tort” remedy.
Another way to put it is the class action process had almost made barratry, in its traditional meaning, mostly legal. Lawyers still can’t create the facts that amount to the civil wrong – for example, if you know that some place is not properly maintained, suggest that somebody would do well to have a slip and fall there – but, if they see some problem likely to have injured unknown people, they can now advertise the fact that the wrong exists and troll for clients to make it worthwhile for the lawyers to sue.
All one has to do is look at the recent Kellogg’s Rice Crispies class action & settlement in the US, here. We know who will benefit from this one. Of course, it’s also possible that charities will benefit.
I expect that many most lawyers who represent plaintiff classes would publicly disagree with me, if the barratry proposition was put to them. They will describe this as a necessary aspect of the regulatory function – the conduct modification purpose of class actions. After all, if we lawyers don’t lead the charge (from the front, of course, with suitable pay for the danger of leading the charge from the front) then who will?
DC