Attorney A refers a case to Attorney B, and agree that they will share in a contingent fee between them.  Ethical issues aside, may Attorney A, who has not committed malpractice nor taken an active role in the case, be held responsible for Attorney B’s malpractice?

Rosenstrauss v Jacobs & Jacobs ;2008 NY Slip Op 08472 ;Decided on November 5, 2008
Appellate Division, Second Department  answers that question as follows:
 

"Moreover, the argument of the defendants Markovits & Markovits and Robert L. Markovits (hereinafter together the Markovits defendants), that they cannot be liable because they merely referred Purgess to the other defendants, is belied by the retainer agreement, in which the Markovits defendants agreed to share any contingency fee in the medical malpractice action. Accordingly, the Supreme Court properly denied the defendants’ separate motions for summary judgment dismissing the complaint. "  Here is more:
 

"Patricia J. Purgess retained the defendants to represent her in an underlying medical malpractice action, which she commenced on November 4, 1993. In an order dated March 20, 1996, the Supreme Court, Orange County, dismissed that action pursuant to CPLR 3404. The defendants neither moved to [*2]vacate that order nor perfected an appeal therefrom. Nearly 11 years thereafter, Purgess moved to vacate the aforementioned order of dismissal. In an order dated April 24, 2007, the Supreme Court denied her motion as barred by the doctrine of laches. In a companion appeal, this Court is affirming the order dated April 24, 2007 (see Rosenstrauss v Women’s Imaging Center of Orange County,AD3d [decided herewith]).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages"