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Choose Carefully When Making a Referral

by John E. Leighton on Categories: liability

Choose Carefully When Making a Referral
Before making a referral to another attorney, be sure to take a moment or two and think about the potential consequences. If the other attorney does a poor job for the client, you could find yourself having to defend your action in a negligent referral or legal malpractice claim.

That’s what happened to a Miami attorney in a high-profile personal injury case — Noris v. Silver, 701 So. 2d 1238 (Fla. 3d DCA 1997). Noris was injured in Chicago when a vehicle struck his bicycle. He contacted Silver, a Miami attorney who had previously represented him in two legal matters. Silver told Noris he did not handle personal injury cases and made a referral to attorney Falk, who in the past had paid Silver a share of any fee recovered in these types of cases in consideration for the referrals.

Noris hired Falk, who failed to settle the suit within the Illinois two-year statute of limitations. After that unhappy outcome, Noris sued Falk for legal malpractice and Silver for legal malpractice and negligent referral. Even through Falk and Silver had not signed a written agreement to divide the attorney fees, the court found that there was an implied agreement and that Silver was legally responsible for the malpractice committed by Falk.

To avoid defending themselves in these time-consuming and expensive actions, South Florida attorneys should do their homework prior to making a referral to another lawyer to handle a criminal trial, civil litigation or business or personal transaction.

One of the best ways to refer your client to an appropriate lawyer, while minimizing your legal risk, is to conduct a thorough due diligence process. Take the time to review the experience and credentials of the attorney before considering a possible referral. For example, you might look to see if the attorney is board certified and has a high rating from third-party services like Martindale-Hubbell or Has the attorney been recognized by his or her peers in legal publications listing top attorneys? Is the attorney active in Bar organizations or associations in the specialty field of their practice? Does the attorney teach legal workshops or seminars? Does the attorney write in the field or author scholarly publications? If the answer is yes to these types of questions, you are on safe grounds in making a referral — regardless of the outcome of the matter.

On the other hand, you should think hard about making referrals to an attorney who has been disciplined by The Bar or has a string of complaints on his or her record. That’s a red flag for a plaintiff’s attorney seeking a reason to drag you into a malpractice case. It’s also a bad idea to refer clients to a friend or family member, unless that attorney has impeccable credentials. Again, if there is a legal malpractice case, the first thing the plaintiff will allege is that your referral was determined by personal considerations. In the words of the old saying, “No good deed goes unpunished.”

When doing due diligence, you should also check to see if the attorney carries legal malpractice insurance and even ask for a copy of that policy. Having a carrier to defend a case can take a huge burden off your shoulders as the referring attorney.

There are some other steps you can take to reduce your potential liability for a negligent referral. First, you can refer to a trusted specialist with superior credentials. Second, you could refer your client to a local bar association. Under the law, bar associations and legal referral services are not subject to negligent referral claims — unlike individual attorneys. Another approach is to provide the client a list of three or four attorneys that have excellent credentials. Then, the client can decide which — if any — of those attorneys to hire.

Regardless of how you handle a referral request, you should document your actions and send a note to your client as well. It takes just a few minutes to summarize your conversation and the nature of your referral in a document that could become an “insurance policy” in the future. Be sure that your staff understands your referral policy as well, so that they don’t overstep their roles and create a potential problem.

Remember that any time you take a referral or participation fee from another attorney, you are “on the hook” for the case. If the client is happy with the outcome, you can go out and celebrate together. But if an unhappy client files a malpractice or negligent referral suit, you can expect to see each other as co-defendants in court.

Leighton Law, P.A.
MIAMI, FL 33131

South Florida Legal Guide 2013 edition

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