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    Wisconsin Lawyer
    June 01, 2015

    Getting & Giving Referrals, Part 2: Nuts and Bolts of Getting and Giving Referrals

    Now that you’ve developed a plan to create a referral network, you need to know the rules of good manners and professional ethics to apply when actually getting and giving referrals.

    Mary Taylor Lokensgard

    excellent meterYou’ve invested time and energy in creating a referral network, but building the network wasn’t an end in itself (see “Part 1: Get More Good Referrals for Your Law Practice,” Wisconsin Lawyer, May 2015). The goal is getting and giving the referrals you need to sustain and grow your practice. So, when the calls start coming in, what do you do? And how can you make good referrals for your own clients?

    Rules and Boundaries: Four Things

    Getting and giving referrals is governed by two sets of rules: good manners and professional ethics. We’ve been trained since law school to mind our ethics, so that’s usually where we focus our attention. But too many lawyers seem to have forgotten to mind their manners. Ignoring the basic rules of etiquette will break your referral network just as quickly, if not faster, than a breach of ethics.

    When you’re working on your referral network, remember: Always use good manners, which sometimes need to be moderated by professional ethics. And, as always when ethics are involved, do your homework. Know the Wisconsin Rules of Professional Conduct, and contact the Ethics Hotline if you have questions.

    For every referral you receive, you need to do four things:

    1) Let the Client Make the Contact. You’re at the Rotary club’s monthly meeting when a realtor who’s part of your referral network pulls you aside. She’s convinced that her client needs your help, but you have no idea whether he thinks he needs a lawyer. She ends with, “Here’s his number. You should give him a call.”

    Mary Taylor LokensgardMary Taylor Lokensgard, U.W. 1993, is a recovering attorney with more than 15 years of experience in private practice, including plaintiff’s personal injury litigation, estate planning and administration, and elder law. She’s now working as an independent writer, and she tweets @marylokensgard. This article is adapted with permission of the March 30, 2015, issue of Attorney at Work.

    You can’t. SCR 20:7.3(a) would consider this the unethical solicitation of a client. So tell her the truth and say, “I could talk to him and see if I can help. But lawyers’ ethics rules say he has to contact me first. If he contacts me, I know he wants to discuss this matter with me, and that he doesn’t already have a lawyer. Then he can decide on his own if he wants to hire me or somebody else.”

    2) Get the Client’s Informed Consent. Unlike the ABA Model Rule, which requires the lawyer to inform the client, SCR 20:7.2(b)(4) requires that the client give his or her informed consent to the nonexclusive reciprocal referral arrangement. Informed consent, as defined in SCR 20:1.0(f), requires that you communicate adequate information and explanation about the material risks and the reasonably available alternatives. Following the rule covers your professional assets, but it also lets you strengthen your attorney-client relationship if you do it right.

    Tell the client, “I know your accountant Jennifer, socially, and we sometimes send clients to each other. I’m glad she gave you my name. Is it okay with you if I let her know you called? If you don’t want me to, I won’t, and I will never share anything with her about what you and I discuss unless you say it’s okay.” Keep in mind that you must get the client’s informed consent. Now your client knows why he has your name, and knows you won’t discuss anything about him with anyone, including the person who sent him to you. If he says you can tell her he called – and clients usually do – then take the next step.

    3) Say thank you, repeatedly. Your first thank you should land right after you talk to the client (again, if it’s okay with him). Send a simple email to your referrer, without details: “Greg Jackson contacted me. Thanks for giving him my name.” Then, when you’re hired, send a real thank-you note – handwritten, on nice paper or a card, with a real stamp – through the mail. Handwritten anything is rare these days, so it stands out more than a text or email – and it’s not that hard to do. Keep some note cards and stamps in your desk, and send the note (again, if your client says it’s okay) to your referral source as the last step in opening your file. “Thanks for sending Greg over. We’ll be working together on his project.”

    What if the potential client doesn’t hire you? Thank your referral source anyway. Remember, you’re building a relationship, not just trolling for clients. You aren’t grateful only for the clients who hire you, you’re grateful for getting the chance to talk with them. Simply say, “Thanks for sending Greg over. Unfortunately, it wasn’t a good fit, but I appreciate the referral.”

    Finally, when you’re closing the file, say thank you again, with another real thank-you note. The matter may have taken a while, so remind your referral source that you exist, and you do good work: “We just finished Greg Jackson’s matter. Thanks for sending him over – he was a pleasure to work with. Please keep me in mind if any of your other clients could use my help.”

    Thank-you notes are fine, but what about taking your referral source out to dinner, or sending her a gift? What about a referral fee? Legal ethics rules constrain your manners here. SCR 20:7.2(b) says you can’t give anything of value in exchange for a recommendation. Remember – no quid pro quo, ever. Save the gifts and dinners for regular social activities, or make them part of a standard business development plan that isn’t limited to your referral sources.

    4) Work Out the Details, and Inform the Client. Under SCR 20:5.4(a), you can’t share fees with a nonlawyer, ever. But if a lawyer referred the client, you are allowed to share fees if you follow SCR 20:1.5(e)(3). The total fee has to be reasonable, both lawyers have to be ethically responsible for the representation as if they were partners in the same firm, and the client has to consent – in a writing he or she signs – to the arrangement, including the fee split.

    What constitutes “reasonable,” “proportional,” and “responsible” varies and is too big a can of worms to open here, so check your local rules and local practice. Then, clarify details with the lawyer who referred the client to you, even if you’ve discussed these issues before. Spell out your fee-sharing agreement in your written fee agreement with your client so there’s no question about who’s getting paid, how much, and why.

    How to Give a Referral: Three Steps

    When you make referrals, you have social and ethical rules to follow, just like when you get referrals. When making a referral, though, you have one more piece to consider. You are sending your client to someone else. The client’s needs must be at the forefront of the interaction, both for his sake, and for your own sake. You don’t want to get on the wrong side of an ethics or malpractice complaint.

    Follow these three steps to give a good referral:

    1) Identify a Good Match for Your Client. It’s tempting to default to a name you always give out, or refer to the person in your network who sends you the most business. But stop and think first – consider both the expertise and the personalities of the people whose names you’ll give your client. If the person to whom you refer your client isn’t competent, you might lose your client and end up on the phone with your malpractice carrier. If he gets on her last nerve, it’s still a bad referral – she’s going to wonder about the company you keep, and might start wondering about your advice generally. Keep in mind that SCR 20:7.2(b)(4) prohibits exclusive reciprocal referral arrangements.

    2) Always Give at Least Two Names. Your clients are entitled to choose people they’ll work with, and they may not share your opinion about who would be a good fit for them. You also cover your assets a bit by giving two or more names – if your client ends up disliking the person she chooses, she knows she had other options.

    What if you have only one person in your network who’s competent to handle her matter? Competence is your priority, so give her your contact’s name, plus the names of one or two other people who have a reputation for competence. You can tell her which one you know personally, and must tell her if you have a nonexclusive reciprocal relationship with that person, but also tell her that the others have good reputations. All of this disclosure is meant to ensure she has the information she needs to make a choice about who to hire.

    3) Let the Client Make the Contact, but Give a Heads-up If You Can. Your client, not you, should decide whether to contact someone about his matter. And remember, if you’re referring him to another lawyer, that lawyer can’t call him first. That being said, always ask the client if he wants you to call the person you’re referring him to, to let her know he might be calling – and assure him you won’t discuss his legal matter with her. Giving your referral source a heads-up does double duty – it lets her know that you’re thinking of her, even if your client doesn’t call, and it can ease your client’s concern about calling someone he doesn’t know.

    One More Crucial Step

    There’s one last step in giving or getting a referral: Write it down. When someone sends you a client, or when you send a referral, record the details in your list or database of referral sources. Do this whether or not the referral works out. Make it easy on yourself and record it contemporaneously instead of trying to recreate all your referrals for the year. It’s part of keeping your network alive.

    Watch for more details about the care and feeding of your referral network in Part 3, the final column of this Getting and Giving Referrals series, in the July/August Wisconsin Lawyer.

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