Legal Malpractice

Referring Attorneys and Legal Malpractice

By (Andrew Lavoott Bluestone)

Attorney Referrals are a significant part of the attorney compensation field, and some attorneys derive considerable fees from their practice of taking in a large catchment population, and then referring the cases out to attorneys in specialized fields.  What is their potential liability?

Bloom v Hensel ;2009 NY Slip Op 00884 ;Decided on February 6, 2009 ;Appellate Division, Fourth Department discusses this issue.
 

""[A]n attorney-client relationship may exist in the absence of a retainer or fee" (Gardner v Jacon, 148 AD2d 794, 795) and, "[i]n determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship" (Wei Cheng Chang v Pi, 288 AD2d 378, 380, lv denied 99 NY2d 501; see McLenithan v McLenithan, 273 AD2d 757, 758-759). The unilateral beliefs of plaintiffs, without more, do not render them Calandra's clients (see e.g. Volpe, 237 AD2d at 283; Jane St. Co., 192 AD2d 451). Here, plaintiffs submitted evidence that Calandra referred the personal injury action to Hensel and that plaintiffs met with Hensel in Calandra's office for the initial meeting and on another occasion as well. Plaintiffs also [*2]submitted evidence that Calandra's staff arranged for the initial meeting, that both defendants met with plaintiffs during that meeting, and that, at the conclusion of the meeting, Hensel stated that "they would call [Robert W. Bloom, Jr. (plaintiff)] . . . if they were going to take the case." In addition, plaintiffs submitted the affidavit of Hensel in which he stated that he had previously engaged in fee-sharing arrangements in several cases referred to him by Calandra and that there was an oral agreement to split the fee with respect to the instant personal injury action. Hensel also stated that Calandra inquired with respect to the progress of the underlying action several times, and plaintiff testified at his deposition that Hensel informed him of that fact. Several of the pleadings or proposed pleadings in the personal injury action list both defendants as plaintiffs' attorneys, and plaintiffs also submitted evidence establishing that Hensel sent Calandra copies of certain of his correspondence with plaintiffs. Viewed as a whole, we conclude that the evidence submitted in opposition to the motion raises a triable issue of fact whether there was an attorney-client relationship between plaintiffs and Calandra (see Tropp, 23 AD3d 550; cf. Jane St. Co., 192 AD2d 451). "

Full post as published by New York Attorney Malpractice Blog on February 11, 2009 (boomark / email).