You Gotta Know When to Hold Em’…and Know When to Refer Em’
by Stephen W. Holaday
Supreme Court Rule of Professional Conduct 4-1.1 states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” But does that apply to the “Moby Dick” personal injury case? Does that apply to the upstart corporate client who always seems to be involved in heated litigation? As much as we young lawyers would love to keep those money makers for ourselves, the answer to both questions above is, “yes.”
The reality is, representation of the client always comes first. That means a client must always be represented by an attorney who can provide a level of representation compliant with Rule 4-1.1. But what if we don’t feel comfortable – or capable – of providing that level of representation? Don’t our livelihoods or ambitions count for anything? Not really, not if the client will suffer. Proper representation must come ahead of impressing our partner and it must come before our personal ambition to take on that big case (and the fee that goes with it).
So the question now becomes, “If we don’t feel we can provide that level of representation, are we simply out of luck?” No, we must ensure the client receives appropriate representation, but that doesn’t mean we must tell the client good-bye. We can ensure the client receives adequate representation by finding an attorney with the skills, knowledge and resources to provide appropriate representation.
Directing the client to an attorney who can provide appropriate representation can be, if done correctly, a win-win-win situation for the client, you and the attorney primarily responsible for the work associated with the representation. The key is to find the right experienced attorney, one who will – in exchange for the “referral” – provide us with a level of tutelage (and don’t forget an appropriate portion of the fee) that allows us to personally represent the next big client that walks through our door.
In an ideal setting, a young lawyer is guided by a more experienced attorney (see Morgan Murphy’s article regarding her first experience second chairing a jury trial) to develop the skills necessary to provide clients with appropriate representation. However, if you do not work for a firm that has an interest in grooming you along, you likely will have to create a situation which provides incentive for a more experienced attorney to show you the way. And I promise, if you have a big case, you have the incentive necessary.
Anytime two or more attorneys who are not within the same firm are jointly involved in the representation of one client, certain considerations must be given to the fee charged the client. Rule 4-1.5(e) states:
A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
So what does this mean to the young (typically the “referring”) lawyer? First it means you must obtain the client’s permission to “refer” the case. Assuming you have that permission, it means you have the ability to force the older (typically the more experienced) lawyer to mentor you through the representation, assuming you play your cards correctly. Rule 4-1.5(e) requires each lawyer (AKA: the referring lawyer, and the lawyer performing the work) to maintain “joint responsibility” throughout the representation. I know that if I am going to maintain joint responsibility I am going to do more that keep my malpractice premiums paid. I am going to mandate that I receive a copy of all pleadings filed, correspondence, etc., and that definitely includes those being generated by my “co-counsel.” These documents provide me with a wealth of knowledge, knowledge that I can utilize in the future to personally provide a client with representation compliant (and hopefully greater) with the standard set forth in Rule 4-1.1.
In this scenario, the “win-win-win” I mentioned earlier is accomplished as follows:
To equate this to sports (as I am prone to do) today you watched from the sidelines as the veteran quarterback led your team down the field to score the winning touchdown. Don’t just look at your clipboard while that is happening. Keep your eyes on the field, and the next time your team needs a late touchdown you may be the quarterback to lead them.