Fighting for competent counsel
Willey v. Harris County District Attorney, Fifth Circuit No. 21-20138 (decided)
Gerstein Harrow client Andrew Willey is a criminal-defense attorney and activist in Houston who has been unjustly prevented from assisting criminal defendants to obtain competent counsel. We represent Willey in a novel First Amendment challenge to Texas Rules of Professional Conduct that prevent Willey from representing criminal defendants in proceedings that could help them obtain better counsel.
In particular, Willey believes, based on his experiences representing criminal defendants and his deeply held Christian faith, that he has a calling to protect the rights of people who are accused of crimes. Willey has undertaken, at personal expense and without compensation, several efforts to improve the indigent-defense system in Harris County, Texas. One of these efforts involves providing free representation to criminal defendants for the limited purpose of helping them move the criminal court to replace their overburdened and underperforming court-appointed defense lawyers with any other court-appointed counsel who has sufficient time to represent them adequately.
Currently, Willey cannot pursue this mission because doing so would violate Section 38.12(d)(2)(B) of the Texas Penal Code. That provision criminalizes an attorney soliciting clients for pro bono employment merely because the clients are presently represented by other attorneys. This provision applies even to someone like Willey, who is not motivated by monetary gain.
We argued on appeal that Texas may not forbid soliciting clients for ideological purposes, because Willey’s speech is protected by the First Amendment, and the state’s interest in regulating it is minimal compared to Willey’s interests in pursuing this mission. Indeed, Texas law essentially criminalizes attempts to advise people that their legal rights have been infringed. The First Amendment does not let Texas silence Willey in this way.
The Fifth Circuit, the most conservative appeals court in the country, ruled against Willey in March 2022.