Willey v. Harris County DA

Case: 21-20138 Document: 00516235706 Page: 1 Date Filed: 03/11/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 11, 2022
No. 21-20138 Lyle W. Cayce
Clerk
Andrew Willey,
Plaintiff—Appellant,
versus
Harris County District Attorney,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:20-CV-1736
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 pro-
hibiting 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 vio-
late his First Amendment rights to free speech and association. We affirm
because Willey has not shown that his claim is likely to succeed.
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I.
A.
Willey is motivated by his belief that appointed criminal defense attor-
neys 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’ ade-
quacy. 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 Agree-
ment.” It explained that Willey would not become “undersigned Defen-
dant’s attorney of record” or “replace the court-appointed attorney.” In-
stead, Willey’s representation would occur only on any “motion for new
court-appointed counsel, motion of rehearing as such, and writ(s) of manda-
mus 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 Mar-
tin, who was presiding over criminal cases brought against some of the con-
tacted defendants.
2
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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 defen-
dants 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 psycho-
tropic 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 defen-
dants 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).
1
“Barratry” refers to a common-law offense described as “frequently exciting and
3
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Attorneys may not contact represented parties “with the intent to obtain
professional employment” relating to legal representation in “a specific mat-
ter.” 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 suit 3 against the D.A. and re-
quested 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.
stirring up suits and quarrels between his majesty's subjects, either at law or otherwise.”
4 William Blackstone, Commentaries *133.
2
More fully, the relevant part of the statute provides,
A person commits an offense if the person: (1) is an attorney . . . and
(2) with the intent to obtain professional employment for the person or for
another, provides or knowingly permits to be provided to an individual
who has not sought the person’s employment, legal representation, advice,
or care a written communication or a solicitation, including a solicitation
in person or by telephone, that . . . (B) concerns a specific matter and
relates to legal representation and the person knows or reasonably should
know that the person to whom the communication or solicitation is dir-
ected is represented by a lawyer in the matter.
Tex. Penal Code § 38.12(d) (West 2013).
3
Though the D.A. never threatened Willey with prosecution, he has standing to
seek pre-enforcement review because he faces a credible threat of enforcement. See Barilla
v. City of Hous., 13 F.4th 427, 431–32 (5th Cir. 2021); Speech First, Inc. v. Fenves, 979 F.3d
319, 330–31 (5th Cir. 2020). But that standing limits the scope of his appeal. He may
challenge the anti-barratry statute only as it applies to his desired conduct. Our decision
should not be construed as passing judgment on the law’s constitutionality generally.
4
Willey first appealed this denial in Willey v. Harris County District Attorney,
831 F. App’x 132 (5th Cir. 2020) (per curiam). There, we lacked appellate jurisdiction
because the injunction had not yet been denied. Id. at 132. Following the district court’s
refusal, on March 9, 2021, to enjoin the D.A., we have appellate jurisdiction under
28 U.S.C. § 1292(a)(1).
4
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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 crim-
inalized protected political speech and association, warranting strict consti-
tutional 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 chal-
lenged 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
5
Willey has explained that his “Christian faith compels [him] to . . . . seek justice
5
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constitutionally privileged means of expression to secure constitutionally
guaranteed civil rights” rather than “procur[ing] remunerative employ-
ment.” 6 For this appeal, we assume, as do both parties, that application of
the anti-barratry law to his conduct must withstand strict constitutional scru-
tiny. See In re Primus, 436 U.S. 412, 432 (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, 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. Second, in Primus, 436 U.S. at 414−21, the Court held it unconstitu-
tional 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
for the poor and helpless.” In this posture, we work from a limited record. The district
court denied the injunction without finding facts. The D.A. assumes the truth of Willey’s
allegations for this appeal. We do the same. Nothing we say here should be construed as
an authoritative holding on the level of constitutional scrutiny that applies to Willey’s con-
duct. That holding must await more rigorous factfinding.
6
See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 458–59 (1978) (quoting NAACP
v. Button, 371 U.S. 415, 442 (1963)) (alterations adopted).
7
In contrast, attorney solicitations for remunerative work are subject only to inter-
mediate scrutiny. See Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623–24 (1995); Cent. Hud-
son Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).
8
Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015) (quoting Ariz. Free Enter. Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)).
6
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are present in solicitation of prospective clients by lawyers.” Id. at 426. 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. The Court was careful not to “fore-
close carefully tailored regulation that does not abridge unnecessarily” free-
dom of speech or association. Id. at 439.
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 Wil-
9
In both Button and Primus, the Court relied heavily on the importance of provid-
ing potential litigants with representation. See Button, 371 U.S. at 434 (“There thus inheres
in the statute the gravest danger of smothering all discussion looking to the eventual insti-
tution of litigation on behalf of the rights of members of an unpopular minority.”); id. at 436(explaining that the regulation “could well freeze out of existence all such activity on behalf
of . . . civil rights”); Primus, 436 U.S. at 418 n.9 (“[S]ome measure of solicitation of pro-
spective litigants is necessary in safeguarding the civil liberties of inarticulate, economically
disadvantaged individuals who may not be aware of their legal rights and of the availability
of legal counsel [and] that the purpose of the ACLU is to advance and defend the cause of
civil liberties.”). Willey posits that the same interests are implicated here because, without
his intervention, criminal defendants in Harris County risk “having their Sixth Amend-
ment right to effective assistance of counsel frozen out of assistance.” But that, of course,
assumes he is correct about the inadequacy of Harris County’s appointed attorneys.
We cannot make that assumption. That would flip on its head the presumption
that states act constitutionally. See Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209
(1934) (explaining that there is a presumption of constitutionality for state legislative ac-
tion). Absent properly raised contrary evidence, we presume state courts have met their
constitutional obligation to provide indigent criminal defendants with “reasonably effec-
tive assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). The proper
forum for contending otherwise is on direct appeal or collateral attack where the record
would permit full assessment.
7
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ley allegedly wishes to do is constitutionally protected speech and associa-
tion; (2) restrictions on that conduct are strictly scrutinized; but (3) restric-
tions 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 restric-
tion: (1) “preserving the attorney-client relationship from damaging interfer-
ence,” (2) avoiding “unnecessary delays and confusion in court proceed-
ings” 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 anti-
barratry statute to Willey’s conduct at this preliminary stage.
1.
The D.A. fears that Willey’s solicitations, combined with his ques-
tionnaire 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 com-
pelling state interest.
Compelling interests rarely “reduce to precise definition.” See
Williams-Yulee, 575 U.S. at 447. 11 The Supreme Court has sometimes de-
10
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting Fullilove v.
Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in the judgment)); see also
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015).
11
See also Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion) (explain-
8
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scribed compelling interests with synonyms such as “interests of the highest
order” 12 and “vital state interest[s].” 13 But it has offered no general theory
of what makes a state interest “compelling.”
We are left to infer the general from the particular. Interests previ-
ously held compelling enough to satisfy strict scrutiny include “safeguarding
‘public confidence in the fairness and integrity of the nation’s elected
judges,’” 14 combating terrorism, 15 protecting election integrity, 16 remedying
the effects of past unconstitutional race discrimination, 17 and attaining “a
diverse student body” in post-secondary education. 18 The question is wheth-
er preventing interference with indigent defendants’ understanding of their
representation belongs on that list.
Texas’s proffered interest implicates its constitutional obligations.
The state must provide indigent defendants with “reasonably effective assis-
tance” of counsel. Washington, 466 U.S. at 687. Solicitation of a client by
another attorney threatens an appointed lawyer’s ability to provide reason-
ing that promoting election integrity is a compelling state interest in part because free and
fair elections are part of the “essence of a democratic society” (quoting Reynolds v. Sims,
377 U.S. 533, 555 (1964))).
12
Fulton v. City of Phila., 141 S. Ct. 1868, 1881 (2021) (quoting Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).
13
Williams-Yulee, 575 U.S. at 445 (quoting Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 889 (2009)).
14
Id. (quoting Caperton, 556 U.S. at 889).
15
Holder v. Humanitarian L. Project, 561 U.S. 1, 29 (2010).
16
Burson, 504 U.S. at 199.
17
Freeman v. Pitts, 503 U.S. 467, 494 (1992).
18
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 311–15 (1978) (opinion of
Powell, J.). But see Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll.,
980 F.3d 157 (1st Cir. 2020), cert. granted, 2022 WL 199375 (Jan. 24, 2022) (No. 20-1199).
9
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ably effective assistance because it can confuse a defendant about who repr-
esents him. A defendant who thinks someone else represents him may not
provide his attorney of record with critical information about the case. That
can lead to that attorney’s failure to pursue evidence or timely raise a key
defense. Both can constitute ineffective assistance. 19
Of course, Texas is not obligated to criminalize attorney solicitations
of represented defendants. 20 But that observation does not diminish the
importance of the interest Texas serves. States have some latitude to deter-
mine the best way to structure the legal process while meeting their consti-
tutional obligations. For instance, in Williams-Yulee, 575 U.S. at 448, Florida
could have avoided the harms it sought to address with a speech restriction
by switching from a partially elected judiciary to an appointed one. But the
Court did not compel that choice and instead explained that a “[s]tate’s deci-
sion to elect its judges does not require it to tolerate” risks that the public will
lose confidence in the integrity of its judiciary. Id. So too may Texas decide
to focus its efforts to provide effective assistance to indigent defendants on
establishing a single, unmolested attorney-client relationship. A state may
choose to ward off constitutional injuries at the source instead of waiting for
them to materialize.
Still, a constitutional obligation is not ipso facto a compelling interest. 21
19
See, e.g., Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) (holding that failure
to interview eyewitnesses was ineffective assistance); Thomas v. Lumpkin, 995 F.3d 432,
455 (5th Cir. 2021) (“A defense attorney’s obligations in a capital case include conducting
a thorough investigation into potential mitigating evidence.”); Mangum v. Hargett, 67 F.3d
80, 84 (5th Cir. 2002) (explaining a requirement for an ineffective-assistance claim based
on the failure to raise a defense).
20
Indeed, according to Willey, Texas is the only state with such a criminal prohi-
bition. But he acknowledges that at least six other states prohibit identical solicitations via
their rules of professional conduct.
21
Some courts have supposed otherwise. See, e.g., Thomas v. Bright, 937 F.3d 721,
10
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When relying on constitutional compliance as the source of a compelling
interest, the Supreme Court has not stopped at identifying the obligation.
Instead, it has balanced the relative importance of the competing interests.
For instance, in one line of cases, it held that compliance with the Establish-
ment Clause can justify content-based restrictions on speech, but it cautioned
that the same interest may not permit viewpoint discrimination. See Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001). That distinction
can be explained only by the inference that the Court balanced harms and
ranked the Establishment Clause more important than the harm caused by
content discrimination but less important than that caused by viewpoint
discrimination.
The need for balancing further follows from the asserted conflict
among constitutional values. It would be arbitrary to say that any constitu-
tional obligation is compelling enough to sustain infringement of any consti-
tutional right. If that were true, the outcome of strict-scrutiny analysis could
turn solely on which constitutional value a state initially chooses to give
preference to. If two states make opposing choices in the same context, and
both are challenged, the cases could come out differently despite implicating
the same constitutional conflict.
To avoid such arbitrariness, if there is a true conflict between two con-
734 (6th Cir. 2019) (“[A] State’s interest in complying with its constitutional obligations is
compelling.”) (citing Widmar v. Vincent, 454 U.S. 263, 271 (1981)). But the Sixth Circuit
in Thomas held that the challenged action did not survive strict scrutiny for want of narrow
tailoring. Id. at 737. And the state there failed adequately to press that line of argument.
Id. at 734. So the Sixth Circuit did not have occasion to thoroughly consider the question.
For its part, the Court in Widmar merely assumed, as it has done several times, that such
an interest would be compelling because it resolved the case other grounds. 454 U.S.
at 271–73 (holding that the state policy was based on an inaccurate understanding of the
Constitution). The Court has never held that any constitutional obligation is per se a com-
pelling interest.
11
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stitutional values such that one must give way to the other, their relative
importance must be assessed. 22 That is why the Supreme Court has some-
times described strict scrutiny as a “balancing test” and a compelling interest
as a “subordinating” one, which implies comparative analysis. See Emp.
Div., Dept. of Hum. Res. v. Smith, 494 U.S. 872, 882–83 (1990); NAACP v.
Alabama, 357 U.S. 449, 463 (1958) (citation omitted). Thus, we must deter-
mine whether the state’s asserted interest in ensuring indigent defendants
reasonably effective assistance of counsel by protecting attorney-client rela-
tionships can subordinate the rights to free speech and free association. We
conclude that it can.
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. See Williams-Yulee, 575 U.S. at 444–48. A state’s compelling
interest in the “integrity of its election process” is also relevant. See Burson,
504 U.S. at 199 (quotation omitted). Those interests share a concern with
the fairness and legitimacy of government. A state has no higher interest. 23
Little else matters if a state cannot persuade its citizens that it wields
legitimate authority. See, e.g., Luther v. Borden, 48 U.S. (1 How.) 1, 34–38
(1849) (recounting the chaos resulting from a dispute about the legitimacy of
Rhode Island’s post-colonial government). That is why states have been
permitted to limit expression to the extent necessary to ensure that their
22
Accord Bender v. Williamsport Area Sch. Dist., 741 F.2d 538, 559 (3d Cir. 1984),
vacated on other grounds, 475 U.S. 534 (1986) (“[W]e believe that the appropriate analysis
requires weighing the competing interests protected by each constitutional provision, given
the specific facts of the case, in order to determine under what circumstances the net bene-
fit which accrues to one of these interests outweighs the net harm done to the other.”
(emphasis omitted)).
23
“[I]f the people have no faith in their rulers, there is no standing for the state.”
Confucius, The Analects XII 7-3 (James Legge trans., Dover Publ’g ed. 1971).
12
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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. Gideon v. Wainwright,
372 U.S. 335, 344 (1963); Washington, 466 U.S. at 685. If attorney solicitation
impedes effective assistance as previously discussed, a case may be adjudi-
cated 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 ad-
judications. 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 neces-
sary. See Williams-Yulee, 575 U.S. at 448; Burson, 198–99.
It follows that the asserted state interest here is similarly subordinat-
ing. It may sustain application of the anti-barratry law to Willey’s conduct if
the law is narrowly tailored to its end.
2.
A speech restriction is narrowly tailored to a compelling state interest
where it does no more “than is necessary to further” the interest. Knowles v.
City of Waco, 462 F.3d 430, 435 (5th Cir. 2006) (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 801 (1989)). The “essence of narrow tailoring” is to
“focus[ ] on the source of the evils the [government] seeks to eliminate
. . . without at the same time banning or significantly restricting a substantial
quantity of speech that does not create the same evils.” Ward, 491 U.S.
at 799 n.7. Here, the anti-barratry law must not go further than necessary to
13
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prevent indigent criminal defendants from being confused about who rep-
resents them.
A narrowly tailored restriction must also advance the asserted interest
well enough to prove that the interest is genuine and not a post hoc rationali-
zation. Defects of that type are termed “under-inclusivity.” The Supreme
Court has often found under-inclusivity antithetical to narrow tailoring.24
Nonetheless, under-inclusivity is not per se fatal under strict scrutiny.
Williams-Yulee, 575 U.S. at 448–50. After all, it is odd to suggest that a First
Amendment defect might be cured by restricting more speech. Id. at 448. So
it is not enough to point out that a state did not “address all aspects of a prob-
lem in one fell swoop.” Id. at 449. Instead, under-inclusivity tests the
sincerity of the state’s interest. We ask whether the restriction is “riddled
with exceptions” or “so woefully underinclusive as to render belief in [its
stated] purpose a challenge to the credulous.” Id.; White, 536 U.S. at 780.
Under-inclusivity is the principal ground on which Willey attacks the
anti-barratry statute. He finds it under-inclusive in two ways. First, he says
the portion of the statute that could be applied to his conduct can proscribe
only true speech—that is, solicitation of represented clients based on the
inadequacy of their appointed attorney when that attorney truly is inade-
quate. Thus, Willey reasons that the statute serves no legitimate state inter-
est. Second, Willey posits that attorney-client relationships can be harmed in
myriad ways that aren’t covered by the statute. Attorneys can say anything
they like to damage the same relationships so long as they do not “seek to
become [a defendant’s] lawyer in the matter in which they are represented.”
24
See, e.g., Republican Party v. White, 536 U.S. 765, 780 (2002); Lukumi, 508 U.S.
at 543–546; Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 800–802 (2011); Citizens United v.
FEC, 558 U.S. 310, 362 (2010); Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335,
2357 (2020) (Sotomayor, J., concurring in the judgment).
14
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Addressing Willey’s first argument requires statutory explication.
Section 38.12(d) prohibits six types of actions by attorneys and other licensed
professionals. On top of the prohibition on solicitation for legal services that
is directly relevant here, 25 it forbids communications that “involve[ ] coer-
cion, duress, fraud, overreaching, harassment, intimidation, or undue influ-
ence” 26 or “contain[ ] a false, fraudulent, misleading, deceptive, or unfair
statement or claim.” 27 Like the anti-solicitation provision, these prohibitions
apply to any action intended to “obtain professional employment,” even if
not for profit. Id. § 38.12(d)(2).
Willey thus tries to characterize the anti-solicitation provision as sur-
plusage vis-à-vis the state’s interest in protecting attorney-client relation-
ships. He divides attorneys’ hypothetical statements to represented parties
into two categories: “potentially false statements” and “potentially true
statements.” He reasons that any “potentially false statement” is already
covered by Sections (d)(2)(E) and (F) because it would be, for instance, mis-
leading, fraudulent, or overreaching. So he concludes that the only indepen-
dent force of the anti-solicitation provision is to prohibit “potentially true
statements.” He says a state has no legitimate interest in foreclosing at-
tempts to terminate deficient representation.
That dichotomy is way off the mark. For one thing, “potentially
false” and “potentially true” mean more or less the same thing in this
context. Willey’s equivocation about the truth of these hypothetical state-
ments arises from the indeterminacy of whether representation is adequate.
In Washington, 466 U.S. at 687−89, the Court adopted a consciously vague
25
Tex. Penal Code § 38.12(d)(2)(B) (West 2013).
26
Id. § 38.12(d)(2)(E).
27
Id. § 38.12(d)(2)(F).
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“reasonableness” standard, stating that “[m]ore specific guidelines [were]
not appropriate” because the inquiry requires a consideration of “all the cir-
cumstances.” Whenever all circumstances must be considered, reasonable
minds will differ. One lawyer may genuinely believe that another has ren-
dered inadequate assistance and say so, honestly and without exerting undue
influence or overreaching, even where courts and other lawyers would
disagree—especially if that lawyer is predisposed to see the specter of
inadequacy.
For that reason, anything concerning a statement’s truth or falsity is a
poor lens through which to view the state’s interest. Willey neglects to con-
sider that Texas is legitimately interested in forbidding attorney solicitation
of represented parties even where lawyers do not consciously coerce or mis-
lead. If that is true, the anti-solicitation provision is not duplicative, as Willey
claims. That leads to his second argument.
Willey is right that attorneys can say anything they like to represented
clients without violating the anti-solicitation provision so long as they do not
“seek to become their lawyer in the matter in which they are represented.”
That could mean an attorney is free to opine that a represented party’s lawyer
is constitutionally inadequate, provided that attorney does not run afoul of
the anti-fraud and anti-coercion provisions. But characterizing that as under-
inclusivity misapprehends the nature of the state’s interest.
The state’s interest is in preventing confusion that damages relation-
ships 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 “approach[es] represented defendants
and explain[s] to them the deficiencies of their current lawyers,” those defen-
dants are likely to raise those concerns with their current lawyers or a court.
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No. 21-20138
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 demonstrat-
ed, as far as possible at this preliminary stage, that Willey’s conduct caused
that precise type of confusion. 28 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 would have us draw a different conclusion from these facts. At
oral argument, his counsel suggested that at least one criminal defendant was
confused “because he never hears from his lawyer,” not because of Willey’s
actions. 29 In other words, he says any confusion was Doe’s fault, not Wil-
ley’s. That is not supported by the record: It would not explain why every-
28
Primus, 436 U.S. at 433 (explaining that a state must prove that the “substantive
evils” it fears are “present in this case”).
29
Oral Argument at 33:49.
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one involved immediately connected the defendants’ confusion with Willey
or why the families contacted Doe only after Willey’s solicitations. 30 And it
entirely ignores Willey’s conduct involving Kermit Johnson, whose confu-
sion couldn’t possibly be attributed to Doe. But likelihood is all we can judge
at this preliminary stage and on this record. It will be for the district court to
find facts in the first instance and for the D.A. ultimately to prove that Wil-
ley’s actions caused confusion.
If that view of the facts is borne out, prohibiting Willey’s conduct pre-
cisely addresses the state’s compelling interest. There is a special harm cre-
ated where an attorney solicits work relating to a particular legal matter and
the subject of the solicitation already has an attorney—all the more so if the
subject is especially vulnerable to confusion. That harm is not created by
merely expressing an opinion about a defendant’s current lawyer. Hence, the
anti-barratry law Willey challenges is the “essence of narrow tailoring” as it
relates to the state’s compelling interest in protecting relationships between
indigent defendants and appointed counsel. Ward, 491 U.S. at 799 n.7. It
prevents exactly the targeted harm with no exceptions or carve-outs.
In sum, because the anti-barratry law is likely narrowly tailored to a
compelling government interest implicated by Willey’s conduct, Willey has
not shown that he is likely to succeed on the merits of his First Amendment
claim. We therefore decline preliminarily to enjoin the D.A. from enforcing
the statute against him.
30
Willey’s counsel stated at oral argument that one impacted defendant sent
“thirty-three pro se letters to the court.” Id. Those letters are not in the record on appeal,
so we cannot determine their content. But there is no indication that the letters asked about
the identity of that defendant’s attorney. A defendant may write a letter to a court for any
number of reasons. In any event, they were addressed to the court, not to Doe. No one
involved in this case appears to have asked Doe whether he still represented them until that
person had heard from Willey.
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IV.
Finally, Willey asks us to assign this case to a different district judge
on remand. During a hearing on the request for a preliminary injunction, the
district judge erroneously referred to Willey’s organization Restoring Justice
as a “defunct charity” and asked several questions about the organization
and its tax status, even though it was not a party. Evidently, the judge con-
fused Restoring Justice with another organization called “Restore Justice.”
Willey calls that an “improper inquiry” and a “fixation on the tax compliance
of the wrong non-profit,” which the judge never indicated would be set aside.
Judges must be disqualified “in any proceeding in which [their] impar-
tiality might reasonably be questioned.” 28 U.S.C. § 455(a). And appellate
courts may reassign cases to a different judge on remand under their author-
ity to “require such further proceedings to be had as may be just under the
circumstances.” 28 U.S.C. § 2106; Liteky v. United States, 510 U.S. 540, 554
(1994). But reassignment is an “extraordinary” and “rarely invoked”
power. In re DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir. 2002) (quot-
ing Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997)).
We have used two independent tests to decide whether to reassign.
The first test considers three factors:
(1) whether the original judge would reasonably be expected
upon remand to have substantial difficulty in putting out of his
or her mind previously-expressed views or findings determined
to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appear-
ance of justice, and (3) whether reassignment would entail
waste and duplication out of proportion to any gain in preserv-
ing the appearance of fairness.
Id. at 700–01. The second test is whether the facts “might reasonably cause
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an objective observer to question the judge’s impartiality.” 31 The tests are
“redundan[t]” because “the second factor of the first test is virtually identi-
cal to the single question the simpler test asks,” and “[t]he result of each test
has been always the same.” United States v. Khan, 997 F.3d 242, 249 n.4 (5th
Cir. 2021).
This case does not merit reassignment under either test. The district
court’s mistake does not manifest bias to an objective observer because there
were legitimate reasons to ask about Restoring Justice, which is mentioned
six times in Willey’s complaint. And there was discussion in the record about
whether Willey might evade his agreement with Doe by resuming his activi-
ties under the name of Restoring Justice. It was justifiable to ask about which
parties were properly before the court, the relationships between them, and
their legal capacities to act.
Willey further reasons that the district judge must have been inten-
tionally “searching for potentially negative information” to unearth anything
about Restore Justice’s tax compliance. That is unduly speculative. We have
no information in the record about how the judge found the information. We
will not assume the worst, nor would an objective observer. 32
Finally, there is no reason to think the district judge will “have sub-
stantial difficulty in putting [this] out of his . . . mind.” DaimlerChrysler,
294 F.3d at 700. It is now clear that Restoring Justice is not defunct, facing
tax difficulties, or a party to this case. We expect this issue to have no bearing
31
DaimlerChrysler, 294 F.3d at 701 (quoting United States v. Microsoft Corp.,
56 F.3d 1448, 1463 (D.C. Cir. 1995) (alteration adopted)).
32
We express no opinion about the permissibility of judges’ using the internet to
learn about the parties before them. Doing so would be inappropriate on this record. We
conclude only that Willey’s accusations are too speculative to support reassignment.
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whatsoever on further proceedings.
Accordingly, the orders denying the preliminary injunction and the
recusal of the district judge are AFFIRMED. The case remains in the dis-
trict court for further proceedings, which may now resume.
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No. 21-20138
Edith H. Jones, Circuit Judge, concurring:
In this as-applied challenge, we are called upon to determine only
whether Texas’s criminal anti-barratry statute may constitutionally be
applied to Willey’s conduct as described. I think it can, and therefore concur
in the judgment and in the majority’s narrow tailoring analysis. With respect
to the state’s compelling interest, the state and the public have a grave
interest and constitutional duty to provide free defense counsel to indigent
criminal defendants. Gideon v. Wainwright, 372 U.S. 335, 339-340, 83 S. Ct.
792, 794 (1963) (citations omitted). 1 On the facts here alleged, it appears that
Willey undertook deliberately to interfere with a particular court-appointed
attorney’s representation of multiple clients. It is also clear that several
clients or their families were unnerved and confused by his intrusive inquiries
about the appointed attorney’s representation. The state court properly
indicated concern as to whether, inter alia, Willey had caused the defendants
to reveal attorney-client confidences or, contrarily, had caused the
defendants to resist full cooperation with appointed counsel. Either way, and
at least for these reasons, the state has a compelling interest in sanctioning
Willey’s “speech” that not only had a tendency but, as pled, actually did
interfere with the attorney-client relationship provided to these defendants.
As this record stands, Willey has not shown a likelihood of success on the
merits.
1
One need not resort to Confucius to understand the importance of our
government’s operating a criminal justice system that accords defendants due process of
law as interpreted in numerous court decisions.
22