Legal Malpractice

Is Negligent Referal Just a Variant of Legal Malpractice?

By (Andrew Lavoott Bluestone)

In today's NYLJ, Abraham B. Krieger writes a compelling article about "negligent referral ", and gives some history and out of state cases, along with a discussion of NY cases in the area.  To backtrack, Mr. Krieger writes: "Recently, New York's Appellate Divisions in the First, Second and Third departments, and a number of other state courts, implicitly recognized negligent recommendation/referral as a potential cause of action. While New York does not yet expressly recognize "negligent referral" or "negligent recommendation" as a cause of action, such a claim may be supported by applying the tort of negligent misrepresentation. A claim for negligent recommendation/referral may also be supported by the scope of duty voluntarily taken as part of a professional's responsibility under the rules governing professional ethics, conduct and responsibility."

Looking from a slightly different viewpoint, both under the old rules and the new (since April 2009) "Rules of Professional Conduct"   Rule 1.5(g):  "A lawyer shall not divide a fee for legal services with another lawyer who is not associated in the same law firm unless: (1) the division is in proportion to the services performed by each lawyer, or, by a writing given to the client, each lawyer assumes joint responsibility for the representation; (2) The client agrees to employment of the other lawyer after a full disclosure that a division of fees will be made, including the share each lawyer will receive, and the client''s agreement is confirmed in writing and (3) the total fee is not excessive."

Under these rules, there is no more "sub silentio" referral of cases to trial attorneys, or to outside attorneys, or to "specialists."  Hence, the theory of referral malpractice seems to be a relic.  Referral malpractice now appears to be simply another variant of legal malpractice, although in this iteration, referring to multiple attorneys.

Full post as published by New York Attorney Malpractice Blog on January 04, 2010 (boomark / email).