Referrals: Not Illegal To Try

In Bourke v. Kararas, a client brought actions alleging negligence, vicarious liability, and breach of contract against a bar association's lawyer referral service for referring her to an attorney who committed malpractice by failing to file her suit within the applicable statute of limitations. 746 A.2d 642, (Pa.Super 2000). The Superior Court held that the client did not state a claim that the bar association's lawyer referral service was negligent in referring her to the attorney. The reasoning for this was because the court deduced that to allow such an action would inhibit lawyers and bar association in providing referrals.

Peg Eileen Bourke, the client argued that she did set out a claim for negligence in her complaint in that she alleged that the Lawyer Referral & Information Service of Philadelphia Bar Association and Philadelphia Bar Association were negligent in referring her to an Attorney. However, the trial court dismissed this claim because "Pennsylvania courts have not adopted a cause of action for negligent referral" and the appeals court refused to create one.They cited a federal court that stated:

"Many bar associations maintain referral services and many attorneys routinely refer cases because they cannot or do not want to handle them, or because they believe that the receiving attorney has greater expertise in the relevant subject area. Any holding that they nevertheless should be liable for the receiving attorney's conduct of a case would be logically and legally unpersuasive, and could unduly disrupt a process integral to the profession which has helped to meet the demand for legal services in a responsible way. The law provides sufficient protection for clients in the relatively rare instances where their case may end up in the hands of an inept or unscrupulous lawyer. It imposes liability on that lawyer for any improper conduct on his part." Felker v. O'Connell, 1990 WL 31912, 1990 U.S. Dist. LEXIS 3024 (E.D.Pa.1990).

Additionally, Bourke tried to differentiate the case by claiming the referral service concealed that the attorney that was refereed to her was no longer covered with malpractice insurance, which their own rules required, did not obtain malpractice insurance to protect her or supervise the attorney. She also tried to use 2 cases that involved a doctor referral that caused injury to the Plaintiff. The court was not persuaded by these arguments though because her Complaint did not allege the same type of complaints.

Next, Bourke argued that she set out a claim for breach of contract in her complaint, which alleged that a contract was formed between her and the referral service when she responded to the service's advertisement. The complaint stated that the advertisement was an "offer," and that she "accepted" the offer by calling the services. However, the Court ruled that advertisements generally do not constitute offers.

Finally, Bourke alleged that her complaint stated a claim upon which relief could be granted by alleging that the attorney "was an agent of [the Referral Service], acting upon the business of [the Referral Service] and within the scope of [their] authority." The court disregarded this as a legal assertion that completed lacked facts and dismissed it as well.

Ultimately the take away point is that in order to plead negligence of this magnitude, one must plead sufficient facts.

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