Abstract
Attorneys commonly refer clients to other attorneys. Despite this routine practice, only a few jurisdictions have considered whether a referring attorney can be held liable for a client’s loss when the attorney who receives the referral commits malpractice. This paper analyzes the three approaches used by courts in such situations, along with relevant provisions from the Model Code of Professional Responsibility and the Model Rules of Professional Conduct. First, the Michigan/Pennsylvania approach completely precludes liability for negligent attorney referral. Second, the Florida/Illinois approach holds a referring attorney vicariously liable when he or she receives a fee for making the referral. Finally, the New York/New Jersey approach examines the totality of the circumstances to determine whether an attorney was negligent in making the referral.
The author suggests that courts should not categorically shield attorneys from liability for negligent referral. Instead, in addition to considering vicarious liability (triggered by fee-splitting) and negligence, courts should examine whether an undisclosed conflict of influence motivated the referral. In making such an evaluation, courts can analogize to doctrines of beach of fiduciary duty, undue influence, and the business judgment rule.
Recommended Citation
Bruce Ching,
Attorney Referral, Negligence, and Vicarious Liability,
33
S. Ill. U. L.J.
217
(2009).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol33/iss2/3