Are Lawyers Advice Limited to Attorney-Client Contract Terms Orextend to Other Claims As Well ?
In Keef v. Widuch, 321 Ill. App. 3d 571, 747 N.E.2d 992, 254 Ill. Dec. 580 (2001), the plaintiff hired the defendant attorneys to represent him in a workers' compensation matter and sued the attorneys when they failed to advise him of potential third-party actions against a manufacturer of the product that caused his injury. Keef, 321 Ill. App. 3d at 574.
The defendant attorneys moved to dismiss the plaintiff's complaint, arguing that the scope of their representation extended only to the workers' compensation claim; thus, they had no duty to advise the plaintiff regarding product liability claims.
The plaintiff submitted an affidavit from another attorney, who attested that the standard of care applicable to workers' compensation lawyers required them to advise clients about potential third-party claims or advise clients to seek advice from other lawyers regarding potential third-party claims. Keef, 321 Ill. App. 3d at 575-76.
The attorney's duty to his client is not always limited to the terms of the attorney-client contract. Keef, 321 Ill. App. 3d at 577.
For example, independent of any written attorney-client contract, an attorney has duties to exercise competence, provide advice to the client about legal remedies, and inform the client about the scope of the attorney's representation. Keef, 321 Ill. App. 3d at 577.
Whether a duty is owed is a question of law. Keef, 321 Ill. App. 3d at 577.
The relevant factors in determining the existence of a duty include:
(1) reasonable foreseeability;
(2) the likelihood of injury;
(3) the magnitude of the burden on the defendant in guarding against the injury;
(4) the consequences of placing that burden on the defendant. Keef, 321 Ill. App. 3d at 577.
In Keef, the court determined that it was reasonably foreseeable that the typical injured worker would be uninformed about the possibility of a third-party tort action. Keef, 321 Ill. App. 3d at 578.
Any workers' compensation attorney would know or should know about the possibility of a third-party action since such actions are referenced in the statute governing worker's compensation claims.
The burden of requiring the attorney to advise the client about such potential actions would be minimal.
Further, the failure to advise the client about the potential for third-party claims results in a client who is not informed about the limited scope of the attorney's representation. Keef, 321 Ill. App. 3d at 578.
Thus, the Keef court concluded that "in the unique circumstances of its case, workers' compensation attorneys should have a duty to clients to advise them about the possibility of third-party actions and either to investigate such claims or to advise the clients to consult other counsel about such claims." Keef, 321 Ill. App. 3d at 579.