The Risk Manager, Spring 1996
Many lawyers do not appreciate that declining a matter and referring the declined client to another lawyer may result in malpractice liability. 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 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 expeditiously. Recommending the right lawyer without cautioning that prompt action is necessary can also be a negligent referral. Larry Bodine in his article "The Right Way To Refer A Case" (Lawyers Weekly USA, 94 LWUSA 329, 4/11/94) advises that to limit your malpractice exposure:
- Keep no fee.
- Do not supervise the receiving attorney.
- Get proof that the receiving attorney is indeed a specialist in the legal matter, for example, by checking with the state bar association and other attorneys.
- Expressly advise your client in writing that you role has ended.
- Ascertain that the receiving attorney has malpractice insurance in an adequate amount.