Legal Malpractice Newsroom

Florida Legal Ethics For Referring attorneys

A referring attorney may be held liable for the malpractice of a lawyer to whom a client has been referred, if the referring lawyer retains a financial interest in the client's case by agreeing to divide the legal fee. Noris v. Silver, 701 So. 2d 1238 (Fla. 3d DCA 1997). Lawyers can agree to divide fees only if "the division is in proportion to the services performed by each lawyer;" or with client consent if "each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client." FL Rule 4-1.5(g). The court in Noris reasoned from the rule that a referring lawyer would retain responsibility for the client's representation and could be held liable for malpractice of the working lawyer. 701 So. 2d at 1240; see also FL Eth. Op. 90-3 (July 15, 1990) ("an attorney's acceptance of joint legal responsibility for the case and agreement to be available to consult with the client is the quid pro quo for the attorney's receipt of a portion of the fee that does not represent payment for work performed").

In Noris, The referring lawyer argued that because the agreement to divide fees was oral and therefore unenforceable he could not be held liable for any malpractice. The court agreed that the oral agreement would be unenforceable, but held that the unenforceability of the agreement would not shield the referring attorney from malpractice:

To hold otherwise would allow attorneys to thwart their responsibility to a client by intentionally disregarding the Rules Regulating The Florida Bar. This cannot be condoned. It would also be unfair to lawyers who comply with Rule 4-1.5 to allow an avenue of escape for those who do not.

701 So. 2d at 1240-41. The court explained that the burden would be on the plaintiff to prove the existence of the agreement. It would not be enough to prove that the working attorney had a "unilateral, subjective intent to pay a referral fee." Id. at 1241.