This article considers the liability of a lawyer under New York law for the malpractice of a lawyer to whom a case is referred. Ordinarily, the referring lawyer is not responsible for the negligence of receiving counsel, provided that the referring attorney uses minimal care in selecting counsel. However, when the attorneys share a contingency fee, New York's Code of Professional Responsibility requires the attorneys to either assume joint responsibility for the representation, or else divide the legal fees in proportion to the actual work performed. When the attorneys nonetheless agree to share a fee without compliance with the Code, can the Code violation be the basis for a claim of legal malpractice against the referring attorney, who did no work on the case? I argue that the Code itself eschews its use as a basis for malpractice liability, and accordingly is insufficient by itself to give rise to a malpractice claim under New York law.
Available at: http://works.bepress.com/barry_temkin/13/