Barratry
Encyclopedia
Barratry is the name of four legal concepts, three in criminal
and civil law
, and one in admiralty law
.
, though the second sense (advertising by solicitors) remains prohibited in accordance with clauses 20 and 22 of the Legal Profession Regulation of 1987.
the common law offence of being a common barator was abolished by section 13(1)(a) of the Criminal Law Act 1967
.
of England. It was classified as a misdemeanor
. It consisted of "persistently stirring up quarrels in the Courts or out of them". It is doubtful whether in the ordinary way persons charged with commission of this offence were dealt with by indictment
.
In 1966 the Law Commission recommended that this offence be abolished. They said that there had been no indictments for this offence for "many years" and that, as an indictable misdemeanor, it was "wholly obsolete". Their recommendation was implemented by the Criminal Law Act 1967.
as part of their tort reform
efforts. For example, in the U.S. state
s of California
, Pennsylvania
, Virginia
, and Washington, barratry is a misdemeanor
; in Texas
, a felony
.
Barratry (in the sense of soliciting legal business) is also prohibited in the US. Such conduct violates Rule 7.3 of the American Bar Association Model Rules of Professional Conduct
. Some bar associations strongly enforce rules against barratry. For example, the State Bar of California
dispatches investigators to large-scale disaster scenes to discourage ambulance chasers, and to catch any who attempt to solicit business from disaster victims at the scene.
Barratry in this sense is pejoratively known as ambulance chasing from the stereotype of an attorney who stops at the scene of a car accident
or follows an ambulance
to an emergency room in hopes of finding and soliciting business from an injured person.
, barratry is an act of gross misconduct committed by a master or crew of a vessel which damages the vessel or its cargo. These activities may include desertion, illegal scuttling
, theft of the ship or cargo
, and/or committing any actions which may not be in the shipowner's best interests by the master or crew.
. This venality is the secular counterpart of simony
, which is the buying and selling of positions (notably benefice
s) within the church
.
In his Inferno
, Canto XXI, Dante
places barrators in the Eighth Circle, fifth bolgia of Hell
.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
, and one in admiralty law
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
.
- Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass. This action is a crimeCrimeCrime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
in some jurisdictions. - Barratry also refers to the act of soliciting legal business from potential clients based on a particular event (whether or not the intent is to harass). Pejoratively, this is called ambulance chasing.
- Barratry also refers to persistently inciting others to engage in litigation or other disputes or quarrels outside of the courts. This was a crime in England.
- In admiralty lawAdmiralty lawAdmiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
, barratry is an act of gross misconduct committed by a master or crew of a vessel which damages the vessel or its cargo. These activities may include desertion, illegal scuttlingScuttlingScuttling is the act of deliberately sinking a ship by allowing water to flow into the hull.This can be achieved in several ways—valves or hatches can be opened to the sea, or holes may be ripped into the hull with brute force or with explosives...
, theft of the ship or cargoCargoCargo is goods or produce transported, generally for commercial gain, by ship, aircraft, train, van or truck. In modern times, containers are used in most intermodal long-haul cargo transport.-Marine:...
, and/or committing any actions which may not be in the shipowner's best interests by the master or crew.
Australia
In Australia, the term barratry is predominantly used in the first sense of a frivolous or harassing litigant. The concept has fallen into disuse in AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, though the second sense (advertising by solicitors) remains prohibited in accordance with clauses 20 and 22 of the Legal Profession Regulation of 1987.
England and Wales
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
the common law offence of being a common barator was abolished by section 13(1)(a) of the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
.
History
Being a common barator was an offence under the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England. It was classified as a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
. It consisted of "persistently stirring up quarrels in the Courts or out of them". It is doubtful whether in the ordinary way persons charged with commission of this offence were dealt with by indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
.
In 1966 the Law Commission recommended that this offence be abolished. They said that there had been no indictments for this offence for "many years" and that, as an indictable misdemeanor, it was "wholly obsolete". Their recommendation was implemented by the Criminal Law Act 1967.
United States
Several jurisdictions in the US have declared barratry (in the sense of a frivolous or harassing litigant) to be a crimeCrime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
as part of their tort reform
Tort reform
Tort reform refers to proposed changes in common law civil justice systems that would reduce tort litigation or damages. Tort actions are civil common law claims first created in the English commonwealth system as a non-legislative means for compensating wrongs and harm done by one party to...
efforts. For example, in the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, and Washington, barratry is a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
; in Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
.
- California Penal Code Section 158: "Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000)."
- California Penal Code Section 159: "No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy."
- Revised Code of Washington 9.12.010: "Every person who brings on his or her own behalf, or instigates, incites, or encourages another to bring, any false suit at law or in equity in any court of this state, with intent thereby to distress or harass a defendant in the suit, or who serves or sends any paper or document purporting to be or resembling a judicial process, that is not in fact a judicial process, is guilty of a misdemeanor; and in case the person offending is an attorney, he or she may, in addition thereto be disbarred from practicing law within this state."
Barratry (in the sense of soliciting legal business) is also prohibited in the US. Such conduct violates Rule 7.3 of the American Bar Association Model Rules of Professional Conduct
American Bar Association Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct, created by the American Bar Association , are a set of rules that prescribe baseline standards of legal ethics and professional responsibility for lawyers in the United States. They were promulgated by the ABA House of Delegates upon the recommendation...
. Some bar associations strongly enforce rules against barratry. For example, the State Bar of California
State Bar of California
The State Bar of California is California's official bar association. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, and prescribing appropriate discipline...
dispatches investigators to large-scale disaster scenes to discourage ambulance chasers, and to catch any who attempt to solicit business from disaster victims at the scene.
Barratry in this sense is pejoratively known as ambulance chasing from the stereotype of an attorney who stops at the scene of a car accident
Car accident
A traffic collision, also known as a traffic accident, motor vehicle collision, motor vehicle accident, car accident, automobile accident, Road Traffic Collision or car crash, occurs when a vehicle collides with another vehicle, pedestrian, animal, road debris, or other stationary obstruction,...
or follows an ambulance
Ambulance
An ambulance is a vehicle for transportation of sick or injured people to, from or between places of treatment for an illness or injury, and in some instances will also provide out of hospital medical care to the patient...
to an emergency room in hopes of finding and soliciting business from an injured person.
Admiralty law
In admiralty lawAdmiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
, barratry is an act of gross misconduct committed by a master or crew of a vessel which damages the vessel or its cargo. These activities may include desertion, illegal scuttling
Scuttling
Scuttling is the act of deliberately sinking a ship by allowing water to flow into the hull.This can be achieved in several ways—valves or hatches can be opened to the sea, or holes may be ripped into the hull with brute force or with explosives...
, theft of the ship or cargo
Cargo
Cargo is goods or produce transported, generally for commercial gain, by ship, aircraft, train, van or truck. In modern times, containers are used in most intermodal long-haul cargo transport.-Marine:...
, and/or committing any actions which may not be in the shipowner's best interests by the master or crew.
Other
Barratry, when used elsewhere, may refer to the buying and selling of positions (which are expected to bring greater income in time) within civil authorityCivil authority
Civil authority is that apparatus of the state other than its military units that enforces law and order. It is also used to distinguish between religious authority and secular authority...
. This venality is the secular counterpart of simony
Simony
Simony is the act of paying for sacraments and consequently for holy offices or for positions in the hierarchy of a church, named after Simon Magus , who appears in the Acts of the Apostles 8:9-24...
, which is the buying and selling of positions (notably benefice
Benefice
A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
s) within the church
Christian Church
The Christian Church is the assembly or association of followers of Jesus Christ. The Greek term ἐκκλησία that in its appearances in the New Testament is usually translated as "church" basically means "assembly"...
.
In his Inferno
Inferno (Dante)
Inferno is the first part of Dante Alighieri's 14th-century epic poem Divine Comedy. It is followed by Purgatorio and Paradiso. It is an allegory telling of the journey of Dante through what is largely the medieval concept of Hell, guided by the Roman poet Virgil. In the poem, Hell is depicted as...
, Canto XXI, Dante
Dante Alighieri
Durante degli Alighieri, mononymously referred to as Dante , was an Italian poet, prose writer, literary theorist, moral philosopher, and political thinker. He is best known for the monumental epic poem La commedia, later named La divina commedia ...
places barrators in the Eighth Circle, fifth bolgia of Hell
Hell
In many religious traditions, a hell is a place of suffering and punishment in the afterlife. Religions with a linear divine history often depict hells as endless. Religions with a cyclic history often depict a hell as an intermediary period between incarnations...
.
See also
- Abuse of processAbuse of processAbuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process not justified by the underlying legal action.It is a common law intentional tort...
- ChampertyChampertyChamperty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit...
- CollegataryCollegataryIn civil law, a collegatary is a person to whom is left a legacy, as imparted by a will, in common with one or more other individuals; so called as being a joint legatary, or co-legatee.-References:...
- Forum shoppingForum shoppingForum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
- Legal advertisingLegal advertisingLegal advertising is advertising by lawyers and law firms.Legal marketing is a broader term referring to advertising and other practices, such as client relations and public relations.-In the United States:...
- Malicious prosecutionMalicious prosecutionMalicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
- Strategic lawsuit against public participationStrategic lawsuit against public participationA strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....
- Vexatious litigationVexatious litigationVexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a...
- frivolous or vexatiousFrivolous or vexatiousIn the law of several jurisdictions, such as Ireland and New Zealand, frivolous or vexatious, when used to describe an action such as a complaint or a legal proceeding, is a term used to deny its being heard, or to dismiss or strike out any ensuing judicial or non-judicial processes.While the term...
- Isaac Wunder orderIsaac Wunder orderAn Isaac Wunder order is an order issued by an Irish court restricting the ability of a vexatious litigant to institute legal proceedings without leave from that or another court, whether for a specified period of time or indefinitely...