The little known malpractice area of negligent referral of clients continues to grow. The referring lawyer has a duty to be reasonably sure the receiving lawyer is competent in the practice area the matter involves. This is true even though the referring lawyer receives no fee and has no further participation in the representation. A preliminary consultation with a potential client may besufficient to create a duty to exercise ordinary care and skill when referring that person to another lawyer. The applicable standard of care is based on the nature of the declined representation. Often it will be enough to confirm that the recommended lawyer is licensed to practice law in Kentucky. Licensure gives rise to a presumption that the lawyer is competent and possesses the requisite character and fitness. If the declination is because the matter requires special skill or knowledge, the referring lawyer must be careful to ascertain that the suggested lawyer has the necessary competence. If the matter requires immediate action, the referring lawyer should advise that the new lawyer be consulted immediatly. Recommending the right lawyer without cautioning that prompt action is necessary also can be a negligent referral.
The Clark County Bar Association developed an excellent procedure to facilitate referrals with minimal liability exposure. They collected a list of practice areas from each member lawyer, combined that information with the lawyer’s name, address and telephone number, and distributed the list to their members. When asked for a referral the lawyer supplies the requester with the list and the requester takes it from there. If any other bar would like to try this, we have sample copies of the Clark County Bar list. Just call Pete Gullett at 1-800-800-6101 and he’ll take it from there.