Dealing with Client Cases Outside Your Scope of Practice

The Three R's: Retaining, Referring, and Rejecting

What does an attorney do when someone asks for help outside the scope of the attorney's usual practice, or their firm's practice? The options are some variation on the 3 R's: Retaining, Referring, and Rejecting. Different options have different positives and negatives, including potential tort liability.

Retaining

An attorney might decide to represent the client on the new matter. Sometimes that decision is motivated by a desire to help, or by a desire to maintain good relations and satisfy a client's needs. A less admirable motivation might be to simply have the additional work.

It is important to know your options when presented with a potential case that is outside your scope of practice.

Taking on a new case or matter in an unfamiliar area of law presents challenges such as learning new law and potential ethical pitfalls (see Rule 1.1 of the Oregon's new Rules of Professional Conduct). It may also have tort liability implications. In the case of Horne v. Peckham , 97 Cal App 3d 404, 158 Cal Rptr 714 (Ct App 1979), for example, a general practice attorney who had no tax expertise agreed to create a trust that purportedly created a tax shelter for the client. When the IRS audited and found tax deficiencies, the client successfully sued the attorney. The appellate court upheld the decisions, noting that the trial court had correctly instructed the jury as follows: "it is the duty of an attorney who is general practitioner to refer his client to a specialist or recommend the assistance of a specialist if under the circumstances a reasonably careful and skillful practitioner would do so." The instructions further provided that if the attorney fails to refer, the attorney must have a specialist's knowledge and skill and must exercise the care and skill ordinarily used by specialists under the same circumstances.

Referring

Another option is to refer the case to another attorney. In some fields, such as personal injury law, there is of course a well-established practice of giving referral fees for at least some kinds of cases. In other cases, there may be no fee split, but the referring attorney may simply want his or her client to be taken care of well.

There are ethical and liability issues with referrals. On the ethical side, for example, referral fees are allowed if the client gives informed consent that there will be a division of fees, and the total fee of the lawyers for all legal services they rendered the client is not clearly excessive (See Rule 1.5(d)(1),(2)). However, attorneys are generally prohibited from having reciprocal referral agreements (See Rule 7.2 of the Oregon Rules of Professional Conduct). In Oregon, the standard referral fee, if any, often depends on the type of case, the likelihood of success, and the expected expenses in obtaining a recovery.

On the liability side, if an attorney decides to refer a client, the referral should be reasonable under the circumstances. In Tormo v. Yormack , 398 F Supp 1159 (DNJ 1975), the defendant referring lawyer was determined to be negligent in referring a personal injury client to another practitioner, Yormack who had been indicted for conspiring to fraudulently obtain money from an insurance company (for which he was subsequently convicted and disbarred). Attorney Yormack contacted the defendant after finding out that the defendant's client had been in an accident. Yormack and the defendant had no prior dealings or prior relationship. The court held that while a valid law license creates a presumption that the lawyer was fit to practice law, the circumstances of the initial contact suggested that Yormack had initially unethically solicited the client, evidencing a lack of general trustworthiness, putting defendant on notice to inquire further.

The safest referral practice is presumably to refer to another attorney who is well-recognized in that particular field. If there is to be a fee split, make sure that it comports with the applicable rules.

Rejecting

Simply rejecting a case outside one's area of competence is a straightforward option. Even here, there may be pitfalls. The PLF, of course, recommends non-engagement letters for rejected cases (sample "nonengagement" letter forms are at www.osbplf.org/).

But simply rejecting a case that may have merit does not assist the person who came to you for help. Rejecting a case may create ill-will towards both the individual attorney and towards the legal profession. Similarly, rejecting a new matter for an existing client may risk damaging an important relationship, if not handled diplomatically.

Tort Tip Archives

Get the Lead Out Test Kits
When Goverment Does Wrong
Nursing Home and Assisted Living Rights
Health Insurance Tort Blues
Uninsured Motorist Update
Holiday Accidents
Insurance Legislation
Premises Liability
Inadequate Liability Insurance
Measure Seeks to Limit Contingent Fees

The Corson & Johnson Law Firm serves clients throughout Oregon, including Eugene, Portland, Brownsville, Springfield, Hood River, Brookings, Corvallis, Salem, Redmond, Roseburg, Medford, Klamath Falls, Myrtle Creek, Bend, Albany, Creswell, Ashland, Central Point, Grants Pass, Junction City, Florence, Tigard, Cottage Grove, Coos Bay, North Bend, Newport, Oregon City, Hillsboro, Gresham, Beaverton.

Benton County • Clackamas County • Coos County • Crook County • Deschutes County • Douglas County • Jackson County • Jefferson County • Josephine County • Klamath County • Lane County • Lincoln County • Linn County • Marion County • Multnomah County • Polk County • Tillamook County • Washington County

The Corson & Johnson Law Firm does not offer any guarantee of case results. Past success in litigation does not guarantee success in any new or future civil action. Our web site describes some of the cases that Don Corson, Lara Johnson, or The Corson & Johnson Law Firm has worked on in the past. Our description of those cases is summary in nature. The results obtained in each of the cases depended on the particular facts of each case. The results of other cases will differ based on the different facts involved.

FULL DISCLAIMER

Eugene Oregon Personal Injury Attorneys • Corson & Johnson Law Firm, Don Corson and Lara Johnson, 101 East Broadway Suite 303, Eugene, Oregon 97401 • phone: 541/484-2525, fax: 541/484-2929
Defective products Trucking and motor vehicle collisions Insurance claims and disputes Nursing home neglect Medical negligence, drugs, and medical products Aircraft, railroad, and boating accidents Construction and industrial accidents Fire, toxic, and chemical injuries Public interest and environmental work Your Case	skip to content >
	HOME Our Firm Honors & Awards Client Perspectives Representative Cases Our Attorneys Don Corson Lara Johnson Travis Eiva News & Links Product Recalls Medical Alerts Public Interest Case News Links How the Law Works Complaint to Verdict Contingent Fees Your Case The Law & You Oregon Jury Project Your Case Contact Us Sitemap Search
	Dealing with Client Cases Outside Your Scope of Practice The Three R's: Retaining, Referring, and Rejecting What does an attorney do when someone asks for help outside the scope of the attorney's usual practice, or their firm's practice? The options are some variation on the 3 R's: Retaining, Referring, and Rejecting. Different options have different positives and negatives, including potential tort liability. Retaining An attorney might decide to represent the client on the new matter. Sometimes that decision is motivated by a desire to help, or by a desire to maintain good relations and satisfy a client's needs. A less admirable motivation might be to simply have the additional work. It is important to know your options when presented with a potential case that is outside your scope of practice. Taking on a new case or matter in an unfamiliar area of law presents challenges such as learning new law and potential ethical pitfalls (see Rule 1.1 of the Oregon's new Rules of Professional Conduct). It may also have tort liability implications. In the case of Horne v. Peckham , 97 Cal App 3d 404, 158 Cal Rptr 714 (Ct App 1979), for example, a general practice attorney who had no tax expertise agreed to create a trust that purportedly created a tax shelter for the client. When the IRS audited and found tax deficiencies, the client successfully sued the attorney. The appellate court upheld the decisions, noting that the trial court had correctly instructed the jury as follows: "it is the duty of an attorney who is general practitioner to refer his client to a specialist or recommend the assistance of a specialist if under the circumstances a reasonably careful and skillful practitioner would do so." The instructions further provided that if the attorney fails to refer, the attorney must have a specialist's knowledge and skill and must exercise the care and skill ordinarily used by specialists under the same circumstances. Referring Another option is to refer the case to another attorney. In some fields, such as personal injury law, there is of course a well-established practice of giving referral fees for at least some kinds of cases. In other cases, there may be no fee split, but the referring attorney may simply want his or her client to be taken care of well. There are ethical and liability issues with referrals. On the ethical side, for example, referral fees are allowed if the client gives informed consent that there will be a division of fees, and the total fee of the lawyers for all legal services they rendered the client is not clearly excessive (See Rule 1.5(d)(1),(2)). However, attorneys are generally prohibited from having reciprocal referral agreements (See Rule 7.2 of the Oregon Rules of Professional Conduct). In Oregon, the standard referral fee, if any, often depends on the type of case, the likelihood of success, and the expected expenses in obtaining a recovery. On the liability side, if an attorney decides to refer a client, the referral should be reasonable under the circumstances. In Tormo v. Yormack , 398 F Supp 1159 (DNJ 1975), the defendant referring lawyer was determined to be negligent in referring a personal injury client to another practitioner, Yormack who had been indicted for conspiring to fraudulently obtain money from an insurance company (for which he was subsequently convicted and disbarred). Attorney Yormack contacted the defendant after finding out that the defendant's client had been in an accident. Yormack and the defendant had no prior dealings or prior relationship. The court held that while a valid law license creates a presumption that the lawyer was fit to practice law, the circumstances of the initial contact suggested that Yormack had initially unethically solicited the client, evidencing a lack of general trustworthiness, putting defendant on notice to inquire further. The safest referral practice is presumably to refer to another attorney who is well-recognized in that particular field. If there is to be a fee split, make sure that it comports with the applicable rules. Rejecting Simply rejecting a case outside one's area of competence is a straightforward option. Even here, there may be pitfalls. The PLF, of course, recommends non-engagement letters for rejected cases (sample "nonengagement" letter forms are at www.osbplf.org/). But simply rejecting a case that may have merit does not assist the person who came to you for help. Rejecting a case may create ill-will towards both the individual attorney and towards the legal profession. Similarly, rejecting a new matter for an existing client may risk damaging an important relationship, if not handled diplomatically. Tort Tip Archives Get the Lead Out Test Kits When Goverment Does Wrong Nursing Home and Assisted Living Rights Health Insurance Tort Blues Uninsured Motorist Update Holiday Accidents Insurance Legislation Premises Liability Inadequate Liability Insurance Measure Seeks to Limit Contingent Fees
	The Corson & Johnson Law Firm serves clients throughout Oregon, including Eugene, Portland, Brownsville, Springfield, Hood River, Brookings, Corvallis, Salem, Redmond, Roseburg, Medford, Klamath Falls, Myrtle Creek, Bend, Albany, Creswell, Ashland, Central Point, Grants Pass, Junction City, Florence, Tigard, Cottage Grove, Coos Bay, North Bend, Newport, Oregon City, Hillsboro, Gresham, Beaverton. Benton County • Clackamas County • Coos County • Crook County • Deschutes County • Douglas County • Jackson County • Jefferson County • Josephine County • Klamath County • Lane County • Lincoln County • Linn County • Marion County • Multnomah County • Polk County • Tillamook County • Washington County The Corson & Johnson Law Firm serves clients throughout Oregon, including Eugene, Portland, Brownsville, Springfield, Hood River, Brookings, Corvallis, Salem, Redmond, Roseburg, Medford, Klamath Falls, Myrtle Creek, Bend, Albany, Creswell, Ashland, Central Point, Grants Pass, Junction City, Florence, Tigard, Cottage Grove, Coos Bay, North Bend, Newport, Oregon City, Hillsboro, Gresham, Beaverton. Benton County • Clackamas County • Coos County • Crook County • Deschutes County • Douglas County • Jackson County • Jefferson County • Josephine County • Klamath County • Lane County • Lincoln County • Linn County • Marion County • Multnomah County • Polk County • Tillamook County • Washington County The Corson & Johnson Law Firm does not offer any guarantee of case results. Past success in litigation does not guarantee success in any new or future civil action. Our web site describes some of the cases that Don Corson, Lara Johnson, or The Corson & Johnson Law Firm has worked on in the past. Our description of those cases is summary in nature. The results obtained in each of the cases depended on the particular facts of each case. The results of other cases will differ based on the different facts involved. FULL DISCLAIMER