You handle workers compensation cases, and you have been sued by a former client. The suit alleges that you committed malpractice when you failed to advise her of causes of action beyond workers compensation which may have been available to her arising from her on-the-job accident. Your representation agreement with this client limited the scope of the representation to seeking workers compensation benefits only.
Your Motion to Dismiss based on this limited scope agreement will:
A. Be granted because your representation agreement limited the scope of the representation.
B. Be granted because it is unreasonable to expect a workers compensation attorney to be aware of other possible causes of action.
C. Be denied because, even though the scope of the representation was limited, Rule 1.2(c) requires the client to be informed of any other potential causes of action.
D. Be denied because whether you owed a duty to this former client is a question of fact, not law.
CORRECT ANSWER: C.
Be denied because, even though the scope of the representation was limited, Rule 1.2(c) requires the client to be informed of any other potential causes of action.
Model Rule of Professional Conduct 1.2(c) requires an attorney to obtain informed consent from a client to limit the scope of representation. Informed consent is defined as the client’s agreement “after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See MRPC 1.0(e). The exact wording of Rule 1.2 differs in various jurisdictions, but almost every state requires that a client give informed consent to the limiting the scope of representation. This includes Indiana, Kansas, Missouri, New Mexico and Tennessee. Each of these states also have an “informed consent” definition identical to the Model Rules.
The duty to obtain informed consent from the client to a limited scope representation includes informing the client about other possible causes of action arising from the incident outside of those being handled by the attorney. See Keef v. Widuch, 747 N.E.2d 992 (Ill. App. Ct., 2001). “[T]he attorney has a duty to inform a client about the scope of the attorney’s representation…Although a representation agreement may limit the scope of the representation to a particular legal course of action, the client must be made to understand that the course of action is not the sole potential remedy and that there exist other courses of action that are not being pursued” Id. at 998.
This duty to inform clients about other possible causes of action likely does not extend to extremely esoteric matters. But an attorney representing a client “should inform the client of possible legal issues in the case that are reasonably apparent to the attorney.” Global Enters., LLC v. Montgomery Purdue Blankenship & Austin PLLC, 52 F.Supp.3d 1162, 1173 (W.D. Wash., 2014). See also Marcano v. Litman & Litman P.C., 741 N.Y.S.2d 522 (N.Y. App. Div., 2002); Nichols v. Keller, 19 Cal.Rptr.2d 601 (Cal. Ct. App., 1993). For example, where a workers compensation client is injured on the job due to a malfunction of certain equipment, the attorney should advise the client of a potential cause of action for products liability against the manufacturer of the equipment. Keef, 747 N.E.2d 992 at 1000.
In order to demonstrate compliance with this duty, it is wise to include a provision in your fee agreement or engagement letter explicitly defining the exact services you will provide to the client in the matter, and also cataloging reasonably apparent other potential causes of action for which you will not be providing representation. This provision should also include the fact that you have informed the client that he or she should consult with another attorney regarding those potential claims.
Malpractice Insurance : Not All Policies Are The Same
Lawyers’ Malpractice Insurance can be complicated and nuanced. In this explainer video we unpack an important policy differentiator that may save you money and protect your practice in the long run: First Dollar Defense.