Also known as: barrator · barrators · common barrator · vexatious litigation · maintenance · champerty
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
The common-law offense of repeatedly inciting or stirring up groundless lawsuits. The offense historically targeted conduct that fomented litigation for improper purposes such as personal gain or harassment.
Willful misconduct by a ship's master or crew that prejudices the owner or charterer, such as scuttling the vessel or embezzling cargo. The conduct must occur during the employment and in relation to the vessel or its cargo.
Each sense below has its own examples, sources, and questions.
The common-law offense of repeatedly inciting or stirring up groundless lawsuits. The offense historically targeted conduct that fomented litigation for improper purposes such as personal gain or harassment.
Brian Bailey, a minority shareholder, repeatedly urged other investors to file derivative suits against Brookside Pharmaceuticals over routine board decisions. After the corporation moved to dismiss under the special litigation committee process, the court examined whether Bailey's pattern of solicitation constituted barratry that undermined the good-faith inquiry.
Benson Motors hired an independent contractor to repair a customer lot. When a patron was injured, the patron's lawyer contacted other potential claimants and encouraged them to sue Benson Motors for the contractor's alleged negligence. Benson Motors defended by asserting that the lawyer's solicitation amounted to barratry.
Bristol Steel held a junior mortgage on a commercial building. After default, it sought a receiver and simultaneously contacted other tenants to encourage them to bring separate actions against the mortgagor. The senior mortgagee argued that this coordinated solicitation constituted barratry that should affect the receivership priority determination.
Brianna Burke, an insurance agent, solicited policies from forum residents and then encouraged those policyholders to sue the insurer in the forum. The insurer moved to dismiss for lack of personal jurisdiction, contending that Burke's pattern of stirring up claims amounted to barratry that should not support jurisdiction.
Bernard Bass's lawyer contacted multiple divorcing spouses and urged them to challenge their separation agreements as unconscionable. When one spouse raised barratry as a defense to the lawyer's fee claim, the court considered whether the repeated encouragement of litigation violated public policy.
Brenda Booth, counsel for several claimants, filed successive petitions seeking family allowances from the same estate. The personal representative objected that the repetitive filings constituted barratry and asked the court to limit further proceedings.
Barratry involves the repeated stirring up of litigation. Maintenance is the financing of another's lawsuit without a legitimate interest. Champerty is maintenance in exchange for a share of the recovery. The three doctrines historically worked together to limit third-party interference in litigation.
No. Although contingent fees historically raised concerns similar to champerty and barratry, modern ethics rules and case law permit them when they do not involve improper solicitation or stirring up claims. The key distinction is whether the lawyer actively incites litigation that would not otherwise occur.
Yes. Courts have recognized that a fee agreement tainted by barratry, maintenance, or champerty may be unenforceable as against public policy. The defense typically arises when the lawyer's conduct in obtaining or pursuing the matter involved improper stirring up of litigation.
Willful misconduct by a ship's master or crew that prejudices the owner or charterer, such as scuttling the vessel or embezzling cargo. The conduct must occur during the employment and in relation to the vessel or its cargo.
Maritime barratry requires willful misconduct by a master or crew member that harms the vessel or cargo, such as scuttling or theft. The litigation sense focuses on repeated incitement of lawsuits. The two doctrines share a historical root in prohibiting wrongful interference but apply in entirely different contexts.
…for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 476, 484. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity…
…the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one…
…its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a
…that decisions concerning construction on the landmark site are made with due consideration of both the public interest in the maintenance
…between direct and indirect effects of intrastate transactions upon interstate commerce as "a fundamental one, essential to the maintenance of our constitutional system." Id. , at 548. Activities that affected interstate commerce directly were within Congress' power; activities that affected interstate commerce indirectly were…
In most jurisdictions the common-law crimes of barratry, maintenance, and champerty have been repealed or fallen into disuse. The doctrines nevertheless continue to influence professional responsibility rules and public-policy defenses to fee agreements.