Max Kennerly writes a blog post about referral or co-counsel fees in personal injury cases, talking about a case where the lawyers agreed to a fee split but after a nice verdict, they argued about what those words actually meant with respect of carving up the fee.
There has been talk, as Max points out, about reforming the system to not allow lawyers to fee split personal injury cases. The talk comes from advocates of tort reform who have the goal of making life more difficult for plaintiffs to bring claims.
Such a rule would do just that. My firm spends a lot of time and effort providing information about personal injury cases on the Internet. We absolutely want to attract victims directly. No doubt. Getting 100% of the fee in a case is a lot more enticing that getting two-thirds of that fee, which is what we get when we accept a referral from another attorney. When we get a good settlement or a verdict in a case where the client came to us, either from the Internet or non-attorney referral, the words “And it is all ours” tend to slip out when discussing the case.
Yet I put a lot of time and energy into this blog that is directed not to victims, but to other lawyers. Why? I’ll tell you. Every single year, we look at where our fees are coming from. Prior clients and victims who find us on-line are rising every year. Yet together, they do not generate nearly as much in attorneys’ fees as cases that were referred to us by another lawyer. Keep in mind, I’m not talking about volume of cases. I’m talking total fees. So, absolutely, we think the smartest approach is to direct our efforts primarily toward trying to attract other lawyers in and out of Maryland who have a personal injury case. The thinking is if they are regularly reading this blog for news and information, and using the resources on our website, they are going to think of us when they need help with a complex malpractice, accident or product liability claim. .
Why is this? I am convinced that the most serious cases are almost invariably funneled to the lawyer that the victim or his family and friends know: the lawyer who did their divorce, workers’ comp or criminal case. These lawyers get the case and do one of two things: (1) try to run with it themselves, or (2) find the best lawyer possible to handle the case. The former choice is one that you see most frequently in vehicle accidents cases. “It is just a tort claim,” they think, “How hard could it be?” Far too often, that choice leads to either a malpractice claim or a client who gets a resolution to their case that is pennies – or no pennies – on the dollar.
The funny thing is that a lot of criminal and divorce lawyers do not even understand the idea of fee splitting because they can’t do it in non-personal injury cases. You can’t fee split in a divorce case, you just can’t. Many lawyers have called to send a case to us, only to be thrilled to learn that they can still share in the fees.
Anyway, circling back, changing the rule to require these lawyers to handle these complex claims themselves or lose any fee would mean that more of these lawyers would try to handle the cases themselves, meaning plaintiffs would have far less competent attorneys handling their complex cases. That is good tort reform assuming you define tort reform as screwing personal injury victims out of competent counsel.