Malpractice Risks in Client and Potential Client Referrals

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Last October at the Aon Law Firm Symposium in Chicago a panel discussed the hazards of referring a client or potential client to another lawyer thereby assuming the risk of a malpractice claim for negligent referral when that lawyer commits malpractice. The panel considered liability in the context of what representations the lawyer might have made about the competence of the recommended lawyer and whether the referral appeared to be reciprocity for cases the lawyer received from the recommended lawyer. The timeliness of this presentation prompts us to offer the following update of our risk management advice on avoiding a negligent referral.

Responsibilities of the Referring Lawyer

  • The referring lawyer has a duty to be reasonably sure the recommended 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 is sufficient 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 is 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 referral 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 recommended lawyer be consulted expeditiously. Recommending the right lawyer without cautioning that prompt action is necessary also can be a negligent referral.

MANAGING THE RISK

When recommending a specific lawyer:

  • Keep no fee.
  • Do not supervise the recommended lawyer.
  • Confirm that the recommended lawyer is competent for the legal matter. Some ways of doing so are:
    • Checking with the KBA,
    • Consulting other attorneys, and
    • Using the Internet to get information about the recommended lawyer.
  • Ascertain that the recommended lawyer has malpractice insurance in an adequate amount.
  • Disclose any relationship you have with the recommended lawyer – have you worked with the lawyer – has the lawyer sent you clients?
  • Expressly advise the client or potential client in writing that your role has ended.

Parts of this list are from ABA/BNA Lawyers’ Manual on Professional Conduct, Current Reports, Aon Firm Symposium Vol. 30, No. 22, pages 689-90, 10/22/14.

 


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