There are plenty of good reasons why a solo lawyer should, and indeed must, refer a case to another firm. For example, if a particular case isn’t compatible with your business – either because it falls outside of your firm’s practice area or it’s not economical for your firm to handle – there’s no reason to hang on to it. And notwithstanding the advance conflict waivers that large firms foist on clients, in my view, conflicts of interest are a non-negotiable grounds for referral, because they “spawn an alarming number of ethics complaints.”
But there are other situations where a solo shouldn’t be so quick to send a case packing, notwithstanding conventional wisdom to the contrary. Here’s a list of examples where you might want to think twice before referring a case:
1. Lack of experience. The Model Rules of Professional Responsibility impose a duty of competence on lawyers. Even so, ethics rules don’t automatically require you to refer out a matter that you’ve never handled before — or you’d never gain experience. Of course, that doesn’t mean that you should take on a murder trial when you don’t have a clue as to what you’re doing (the entire Internet has witnessed what can go wrong in that scenario ). But what you can do, in lieu of a referral, is to keep the case and bring in a more experienced lawyer either to consult with you through the various stages of the case, or take the lead if it’s a high-stakes matter. You probably won’t earn a very large fee with this type of arrangement, but by keeping the work rather than referring it out, you’ll gain valuable experience.
2. Outside the jurisdiction. Don’t assume that you must refer cases in jurisdictions where you’re not licensed to practice. True, referrals are prudent for many smaller, state-specific practice areas like family law or criminal defense, where the client’s budget is unlikely to sustain both a primary lawyer and local counsel and familiarity with local venue offers a significant advantage. But if you have a unique specialization or a national practice (for example, constitutional appeals or Internet disputes), teaming up with local counsel is better than a referral. Not only can you retain the work, but your client can retain access to a more qualified lawyer for the particular matter than might be available on the local scene.
3. Too much work. I cringe when I hear lawyers talking about how they refer out cases in their specific practice area because they don’t have the bandwidth to handle them. In my view, having too much work is one of the absolute worst reasons to refer a case — except perhaps if you practice in a jurisdiction where you can generate referral fees. Here’s why.
First, most of the lawyers who have the availability to take on referred work generally don’t have enough matters themselves. So it’s unlikely that they’ll ever be able to reciprocate the referrals. Second, the reason that many lawyers have an abundance of cases is either because they’ve worked hard doing good work for clients and building a reputation, or invested money in various types of marketing. So when you give away a case with nothing in return, you’re essentially giving money away. Finally, with the myriad of high-quality freelance services cropping up across the country, lawyers facing an overflow situation can outsource the work to a contract lawyer, supervise that work, and earn a profit off the work performed.
There are lots of good reasons that solos should refer work out, but equally as many good reasons not to. The trick is figuring out the difference between the two. As for you, when do you prefer to refer? Post your responses in the comment section.
Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.com since 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at email@example.com or follow her on Twitter at @carolynelefant.