FL App: Underlying Personal Injury
Facts: Plaintiff was injured when a vehicle hit his bike. Plaintiff contacted a friend of his who was an attorney to represent him. The friend did not work on personal injury cases so he referred Plaintiff to another attorney. The personal injury attorney failed to file suit within the SOL however, and Plaintiff sued his friend-attorney for negligent referral and legal malpractice. In prior cases the friend-attorney referred to the personal injury attorney, the attorney’s fee was split between the two. There was no written agreement this time about splitting attorney’s fees. The lower court dismissed the negligent referral claim and summary judgment was granted for the attorney for legal malpractice. On appeal, the summary judgment is examined. Plaintiff needs to prove that there was an express agreement for division of the fee. Alternatively, plaintiff can show that there was an implied agreement, for example by showing a past course of dealing whereby it was understood between the two attorneys that a fee would be paid in exchange for referrals.
Issue: Whether the friend-attorney retained a financial interest in plaintiff’s personal injury case by entering into an express or implied agreement to divide the legal fee.
Ruling: If two attorneys agreed to divide the attorney’s fee, the referring attorney would be liable for the malpractice committed by the second attorney. Attorneys in different firms may divide fees under two circumstances: First, if the "division is in proportion to the services performed by each lawyer," R. Regulating Fla. Bar 4-1.5(g)(1); and second, if the client agrees in writing and the agreement discloses "the basis upon which the division of fees will be made," R. Regulating Fla. Bar. 4-1.5(g)(2). Moreover, when fees are divided pursuant to Rule 4-1.5(g)(2), "each lawyer assumes joint legal responsibility for the representation…." Therefore, if two lawyers agreed to divide the attorney’s fee, the referring attorney would be liable for the malpractice committed by the second attorney. Here, an implied agreement was found.
Lesson: If an attorney refers a case to another attorney, but has a financial interest in the case through an express or implied agreement, he may be held liable if the other attorney commits malpractice. It would not, however, be enough for the plaintiff simply to show that the working attorney had a unilateral, subjective intent to pay a referral fee. Plaintiff must prove an express or implied agreement to divide the fee. As a lesson, malpractice insurance should be purchased by all attorneys.