Know Your Limitations

by Christian Stiegemeyer, Executive Vice President
The Bar Plan Foundation

A workers' compensation lawyer's duty to inform a client about possible third-party actions and applicable statute of limitations when limiting the scope of the representation was at issue in Keef v. Widuch, 747 N.E.2d 992 (Ill.App. 2001). After the client was injured at his job, he hired attorney Widuch and signed a representation agreement stating that Widuch was retained to recover benefits under the Illinois Workers' Compensation Act. The client later sued Widuch for legal malpractice, not because of the handling of the workers' compensation case, but rather alleging that Widuch had a duty to advise him about possible causes of action against third parties and had failed to do so. Widuch argued that her duty was defined solely by the representation agreement, which limited what the parties had agreed she would do in the case.

The court concluded that a workers' compensation attorney in these circumstances had a duty to advise the client about possible third-party actions, to either investigate those claims or advise the client to consult with other counsel about them, that a claim could be barred if not brought within the statute of limitations, and that this duty could not be limited by contract.

The court relied in part on Illinois Rule of Professional Conduct 1.2(c) – Scope of the Representation, which states: "A lawyer may limit the objectives of the representation if the client consents after disclosure." The court reasoned that although an agreement may limit the scope of the representation to a particular course of action, the rule requires that the client must be made to understand that the course of action is not the sole remedy and that other courses of action exist that are not being pursued.

With a minor exception Missouri Supreme Court Rule 4-1.2(c) is identical to the Illinois rule. The exception is that the Illinois rule requires "disclosure," while the Missouri rule requires "consultation." However, both sets of rules identically define the respective terms as, "communication of information sufficient to permit the client to appreciate the significance of the matter in question."

While Keef v. Widuch dealt with a Workers' Compensation representation, any time a client has an additional possible claim other than the one you are handling that arises from the same circumstances bear in mind your duty to properly advise the client in protecting that claim. As important as it is to tell a client what you will do in the representation, it can be equally as important to tell the client what you are not doing, in appropriate circumstances.