Saw a great lawyer ad on television recently on behalf of a lawyer who I’m pretty damn sure doesn’t try the types of cases he was soliciting. It makes one wonder what happens to those unwitting clients who are pulled in by the flashy ads. Do they ever actually talk to the face on the television? If they are brokered out to other lawyers who actually do the work, are they ever fully and properly informed about the nature of the relationship? Do they eventually come to appreciate that they are more commodity than client? This blog is not intended to cast a net over all advertising lawyers. Frankly, there are many like our friends at John Price Law Firm or at The Joye Firm who work hard for their clients. It is a poorly kept secret, however, that there are those among us who are heavy on the advertising and light on the advocacy. So back to the real issue: where does the client factor into what is often nothing more than a high-priced game of bait and switch?
To answer the question, a review of the Rules is usually a good place to start. Rule 1.5(e) permits the division of fees between lawyers of different firms ONLY IF the division is in proportion to the services performed by each attorney OR each lawyer assumes joint responsibility for the representation. Let’s assume for argument sake that there will be no real division of labor in our hypothetical and that the referral lawyer instead agrees to “assume joint responsibility” for the representation. This is permitted by the Rule, provided that the referring lawyer assumes both financial and ethical responsibility and that the referring lawyer remains available to the client and remains knowledgeable about the representation. See Comment 7. Of course, the entire arrangement must be confirmed with the client in writing – lest we forget that there is an actual client involved in this setting.
The Honorable G. Ross Anderson once wrote an article expressing his displeasure over pro hac vice sponsors acting as “potted plants” in his courtroom. G. Ross’ observation seems to hit at the heart of Rule 1.5 – in short, the Rule does not allow anyone who professes to be an attorney for a client to be nothing more than a potted plant. The “potted plant rule” featured heavily in a recent South Carolina Court of Appeals decision. In Tuten v. David Charles Joel, et al., (WL 4212684), our Court upheld a grant of directed verdict in favor of the Plaintiff in a legal malpractice claim. Joel was a Georgia licensed lawyer who maintained an office in Columbia, South Carolina for a period of time, although he was never licensed to practice in South Carolina. Joel advertised in the Columbia Yellow pages and Tuten contacted him in response to his ad following an automobile accident. For a period of time, Joel employed a South Carolina licensed lawyer to man the Columbia office, but this arrangement ended when the SC lawyer left in 2006.
Upon the departure of the SC lawyer, Joel and the departing lawyer agreed that the SC lawyer would keep all of the SC cases and spin 1/3 of all attorneys’ fees back to Joel. A letter was then sent to the client explaining that Joel was “retiring from his South Carolina office,” that the SC counsel would handle the case going forward and that Joel would get 1/3 of the future fee. All of this seemed good and well until statute of limitations was missed, the wreck case was dismissed and a legal malpractice claim was filed. In defense of the legal malpractice claim, Joel attempted to take the position that he had severed the attorney client relationship and that he owed no further duty to the unfortunate client. In other words, he tried to persuade our Court that he could take a piece of the fee and none of the responsibility.
Not surprisingly, our Court would have none of the Joel argument, finding in part:
“We find no evidence Joel took any action to end his attorney-client relationship with Tuten. To the contrary, the only communication Tuten received came from Glover. Glover’s letter informed Tuten ‘this change should not affect you in any way.’ Significantly, Glover’s letter stated, ‘Mr. Joel will receive 1/3 of all attorney’s fees generated on your case.’ Glover’s letter contains no explanation of how Joel could receive an attorney’s fee for not being Tuten’s lawyer.”
The Court could have just as easily quoted Judge Anderson and found that “it is impermissible that an attorney would seek to take a division of fees and yet disavow any liability on the theory that he was nothing more than a potted plant.”
CLIENT POINTER: Rule Number One – know your lawyer. Ask real questions. Meet face to face. It is completely permissible and customary that lawyers associate other lawyers in different matters to access areas of expertise that may be beyond their experience. However, you are entitled to know the reasons for these associations and the roles that the different counsel will play on the team, including how they will be compensated.
PRACTICE POINTER: Don’t be a potted plant. If you’re in for the bounty, you are in for the burden. If you have referred out a matter or associated other lead counsel, it is essential that you remain informed and involved. If your de facto partner or agent errs in the handling of the case, he or she has committed malpractice for both of you.
Eric Bland and Ronnie Richter