Noris v. Silver, 95-2566

• Decision Date: 03 December 1997
• Docket Number: No. 95-2566,95-2566
• Citation: 701 So.2d 1238
• Parties: 22 Fla. L. Weekly D2708 Peter NORIS, Appellant, v. Theodore SILVER, Appellee.
• Court: Florida District Court of Appeals

Page 1238

701 So.2d 1238

22 Fla. L. Weekly D2708

Peter NORIS, Appellant, v. Theodore SILVER, Appellee.

No. 95-2566.

District Court of Appeal of Florida,

Third District.

Dec. 3, 1997.

Sack, Gladstein & Marks and Harlan M. Gladstein, Miami, for appellant.

Cooper & Wolfe and Marc Cooper and Christine M. Ng, Miami; Kopplow & Flynn, Miami, for appellee.

Before NESBITT, COPE and GODERICH, JJ.

On Motion for Rehearing and Certification

PER CURIAM.

Upon consideration of appellee's motion for rehearing and certification we withdraw this Court's previous opinion and substitute the following opinion:

The plaintiff, Peter Noris, appeals from an adverse final summary judgment as to his legal malpractice claim and from an order dismissing his negligent referral claim. We affirm in part and reverse in part.

Plaintiff, a resident of Dade County, Florida, was injured in Chicago, Illinois, when a vehicle struck his bicycle. After the accident, plaintiff contacted appellee attorney Theodore Silver. Plaintiff and Silver were social acquaintances, but Silver had previously represented plaintiff in two legal matters. Silver informed plaintiff that he did not handle personal injury cases and therefore referred plaintiff to attorney Steven M. Falk. Silver had previously referred other cases to Falk and in those cases, Silver received a share of any fee recovered by Falk.

Plaintiff retained Falk to represent him in the personal injury case. The agreement between Falk and plaintiff did not make any reference to a division of the attorney's fee between Falk and Silver. Moreover, Falk and Silver never entered into a written agreement indicating that Falk and Silver would divide the attorney's fee.

Falk contacted the Chicago driver's insurance company in an attempt to settle the personal injury action. Falk, however, failed to file suit within the Illinois two-year statute of limitations. Thereafter, plaintiff filed the present action against Falk for legal malpractice ¹ and against Silver for legal malpractice and negligent referral.

Silver filed a motion to dismiss the negligent referral claim for failure to state a cause of action. The trial court granted the motion. Thereafter, Silver moved for summary judgment on the legal malpractice claim arguing that because Silver did not represent plaintiff in the personal injury case, he could not be held liable for legal malpractice. The trial court granted Silver's motion for summary judgment, and this appeal ensued.

Plaintiff contends that the trial court erred in granting Silver's motion for summary judgment as to the legal malpractice claim. We agree.

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). In the instant case, there is a genuine issue of material fact as to whether Silver retained a financial interest in plaintiff's personal injury case by entering into an express or implied agreement to divide the legal fee.

This issue of fact is material because pursuant to Rule Regulating The Florida Bar 4-1.5(g), ² if Falk and Silver agreed to divide the attorney's fee, Silver would be liable for the malpractice committed by Falk. Attorneys in different firms may divide fees under two circumstances: first, if the "division is in proportion to the services performed by each lawyer," R. Regulating Fla. Bar 4-1.5(g)(1); and second, if the client agrees in writing and the agreement discloses "the basis upon which the division of fees will be made," R. Regulating Fla. Bar. 4-1.5(g)(2). Moreover, when fees are divided pursuant to Rule 4-1.5(g)(2), "each lawyer assumes joint legal responsibility for the representation...." Therefore, if Silver and Falk agreed to divide the attorney's fee, Silver would be liable for the malpractice committed by Falk.

Silver argues that because the purported oral agreement to divide the fee would not be enforceable, since there was no written agreement with the client as required by Rule 4-1.5(g)(2), he cannot be held liable for any malpractice committed by Falk. We disagree.

It is true that if Falk had recovered attorney's fees, Silver could not have enforced the purported oral agreement against Falk since the agreement did not comply with Rule 4-1.5(g)(2). See Chandris, S.A. v. Yanakakis, 668 So.2d 180, 185 (Fla.1995). However, we find that the failure to comply with Rule 4-1.5(g) cannot be used to shield a referring attorney from a legal malpractice claim made by a client. To hold otherwise would allow attorneys to thwart their responsibility to a client by intentionally disregarding the Rules Regulating The Florida Bar. ³ This cannot be condoned. It would also be unfair to lawyers who comply with Rule 4-1.5 to allow an avenue of escape for those who do not. Accordingly, we hold that if Falk and Silver agreed to divide the attorney's fees, then Silver is legally responsible for the malpractice committed by Falk.

We point out that in order for the plaintiff to prevail, the plaintiff must prove that there was an express or implied agreement between the referring attorney, Silver, and the working attorney, Falk, to divide the legal fee. The plaintiff can prove this by showing that there was an express agreement for division of the fee. Alternatively, plaintiff can show that there was an implied agreement, for example by showing a past course of dealing whereby it was understood between the two attorneys that a fee would be paid in exchange for referrals. When the summary judgment record is read in the light most favorable to the plaintiff as nonmoving party, the evidence supports the existence of an implied agreement for division of the fee in this case. ⁴

It would not, however, be enough for the plaintiff simply to show that the working attorney had a unilateral, subjective intent to pay a referral fee. Some attorneys make it a practice to offer a referral fee, whether the referring attorney has requested it or not. Some attorneys make it a practice to decline to accept referral fees when offered, or may request that the referral fee instead be rebated to the client. The fact that the working...