Complicity by Referral

Abstract

Providing a legal referral to a prospective client after declining a proffered matter may seem relatively uncontroversial. Indeed, a lawyer who provides a legal referral, even for an aspiring law-breaker, would be quite unlikely to be subject to any professional sanctions or legal liability as a result. Yet, by providing a legal referral to a potential law-breaker, the lawyer advances the prospective client’s highly questionable goals and becomes complicit in the client’s efforts to circumvent the law. Thus, this article argues that the decision to offer a legal referral is much more morally fraught than previously understood. In response, this article provides guidance about the parameters that should govern a lawyer’s decision about whether and to whom a lawyer should give legal referrals, particularly for matters where clients seek to achieve questionable (or worse) objectives. As the first article to examine the most basic referral scenario (i.e., without referral fees and without any continuing involvement by the referring lawyer), this article fills a gap in the ethics literature and empowers lawyers to make more morally defensible decisions when responding to common referral requests.

Keywords: legal referrals, ethics, professional responsibility, tax avoidance, tax evasion

JEL Classification: K30