On the Intellectual Origins of the Crime of Barratry

I've just concluded a session in my Professional Responsibility class dealing with the selling of legal services by non-lawyers and their solicitation of legal business.  In this particular section of the excellent book by Stephen Gillers, there is a brief discussion of the common law crime of barratry: the instigation of a law suit, including by payment and other inducements, with the intent to obtain economic advantage.  Suffice it to say that Gillers is skeptical about the offense for at least some good reasons, one of which is the issue of vagueness.  A number of jurisdictions have dispensed with barratry altogether, and my own class generally dismissed it as the relic of a bygone era.

I tried to sketch out for them some of the intellectual heritage of the crime.  In Dante's Inferno, i barratieri are punished way down in the 8th Circle along with other fraudulent types.  They are perpetually dipped in boiling pitch by several unsavory and disgusting little demons.  Barratry in that time was understood as the selling of public duties or civil offices (Dante himself had been accused of barratry and exiled from Florence by the Black Guelphs).  I wondered how it was that the crime of selling public offices -- what sounds naturally like bribery to the modern ear, or perhaps some other public corruption offense -- over time took on the rather different meaning of the practice of instigating law suits, of inciting legal malcontent for profit.  It might be that these are simply unconnected meanings, and that is the way they are presented in various on-line sources. 

But I think that's not right at all.  There are deep-rooted connections between what I'll call the ancient and modern meanings of barratry. 

There are two reasons that one might want to punish ancient barratry. First, that a public official whose vote or influence is for sale to the highest bidder has a conflict of interest.  The key here is to focus on the rough idea of client loyalty.  The corrupt politician (say) is loyal to the wrong "client."  He should be loyal to the public, but he's instead sold his loyalty to the moneyed interest.  Second, a very different, and I think more important, reason: that entirely apart from questions of loyalty to this or that client, the barrator has corrupted the integrity of a public function.  This second reason to punish barratry is not connected to the betrayal of any "client" but instead has to do with preserving and upholding the distinction between private interest and public well-being. 

One might respond to this second function as really a manifestation of the first.  Isn't being disloyal to the public as client really the same thing as corrupting the operation of public institutions?  For me, the answer to this question is no.  Selling one's vote to the detriment of one's constituent's wishes (and thereby sacrificing the public's "interests") is one thing; selling one's vote to the detriment of the integrity of the institution of which one is a part, and the traditions that the institution represents, is something very different.  More than that, to mix up these two sorts of reasons is really to allow all ethical questions in this area to be swallowed up by concerns of client loyalty and conflicts of interest.  That is a mistake.

Where modern barratry is punished today in the United States, one can see that the state is implicitly making a claim about the public function of the practice of law.  The idea is that it is wrong to sell one's legal office, and the responsibilities that attend the practice of law, for economic gain, not only, or even primarily, because to do so would represent a possible conflict of interest with a lawyer's duty of loyalty to the client, but (and more crucially) because stirring up legal malcontent in an effort to sell the legal function is a corruption of the legal office -- a deformation of the essential function of law (or at least litigation) as a public institution designed to vindicate people's rights.

I recognize that this second type of reason to punish barratry may sound hopelessly unrealistic to modern lawyers, and my students were not persuaded.  But consider why it is that we prohibit a giant drug pharmaceutical from sniffing out appealing-looking plaintiffs that might advance some pro-corporate position, handing those folks over to their lawyers, shaping the direction of the claims, and manipulating legal process for their own purposes.

It isn't only that we believe that the individual clients may not be well-served.  It isn't only that the drug giant stands to gain monetarily from the suit.  The deeper reason is that we deem it an abuse of the legal process, a corruption of its integrity, when the law's public office is "sold" -- and sold out -- in this fashion.  It is that reason, more than any other, which goes to the heart of the crime of barratry.

ADDENDUM: I've been reading through an interesting old piece by Max Radin in a 1934 edition of the California Law Review, called "Maintenance by Champerty."  In it, Professor Radin comments on the nature of the offense of barratry in medieval Scotland and England: "Barratry in Scotland was understood to mean bribery of judges but in England came to be little more than habitual maintenance and . . . was a criminal offense."  "Maintenance" was really only the funding by feudal lords of the legal actions of their retainers "without any reference to their justification."  In medieval Italy, the same term (consistent with Dante's gloss) was used for the "caupones beneficiorum, the professional dealer[s] in benefices, whether feudal or ecclesiastical."  Dante includes a second category for "ecclesiastical" barrators -- whom he calls simoniacs, but Radin's points seem to indicate something along the unity of meaning that I suggest above.  One last thing of interest -- Radin notes that at least part of the intellectual heritage of these offenses was the Christian idea that litigation was to be used judiciously, and that an overly "vexatious" character -- manifested in the person who "intermeddle[d] with the interest or wrongs of someone else" -- evinced a "quarrelsome and un-Christian spirit."