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. Case: 21-20138 Document: 00516235706 Page: 2 Date Filed: 03/11/2022

No. 21-20138

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 Case: 21-20138 Document: 00516235706 Page: 3 Date Filed: