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1-99-2864

JUSTICE CERDA delivered the opinion of the court:

At issue in this case is whether a retained workers' compensation attorneyhas a duty to advise an injured worker that he might have a cause of actionagainst third parties.

Plaintiff, Melvin Keef, appeals from the dismissal of his legal malpracticecomplaint against defendants, Kathleen Widuch, Brian Lassen, Kenneth Koutsky,and the law firm Koutsky, Boudreau, Lassen & Mason, who were the attorneyswho pursued his workers' compensation claims. Plaintiff was injured at worktwice when a lathe malfunctioned. Plaintiff alleged that defendants failedeither to pursue products liability actions against the manufacturer of thelathe or to inform him about the possibility of third-party actions and theirstatutes of limitations. We conclude that, although defendants agreed in awritten representation agreement to represent plaintiff only in his workers'compensation claims, they had a duty to advise plaintiff about the possibilityof third-party actions and the applicable statutes of limitations. We affirm inpart, reverse in part, and remand.

FACTS

Count I of plaintiff's first amended complaint alleged that on December 15,1991, plaintiff was operating a lathe manufactured by Warner & Swasey andthat the lathe failed to operate correctly, kicking back a piece of steel andinjuring him. On or about January 1, 1992, plaintiff contacted Widuch allegedly"concerning her representation of him against persons and/or entitiesresponsible" for his injuries. Plaintiff signed an attorney-clientagreement with Widuch on or about January 1, 1992.

Count I further alleged that he and Widuch signed the agreement to prosecuteor settle "all claims of personal injuries and/or entitiesresponsible."

However, the agreement, which was filed with one of the motions to dismiss,clearly limited representation to a workers' compensation claim. It stated that plaintiff "retain[ed] KathleenWiduch/Brian D. Lassen *** to prosecute and/or settle all disputed claims forbenefits under the Illinois Worker's Compensation Act or Occupational DiseaseAct against Greenleaf Textron Co. *** on account of injuries arising out of andin the course of employment of [plaintiff] on or about January 15, 1991."(Emphasis added.)

Count I further alleged that Widuch failed to file a complaint based on thedesign and manufacture of the lathe. Widuch allegedly made no attempt to contactplaintiff regarding the need to file suit or to settle possible claims on hisbehalf. The statute of limitations for a products liability action expired onJanuary 14, 1993.

Count I alleged that Widuch's negligence proximately caused plaintiff tosuffer damages. Widuch was allegedly negligent in the following ways:

(a) by failing to file a complaint prior to the expiration of the statute of limitations on behalf of plaintiff against the manufacturer or any other persons and/or entities responsible for the design and manufacture of the lathe that injured him;

(b) by failing to make any attempts to settle possible products liability claims on behalf of plaintiff against the manufacturer or other persons and/or entities responsible;

(c) by failing to properly investigate the injuries sustained by plaintiff in connection with the injury caused by the lathe;

(d) by causing plaintiff to believe that he was being adequately represented when in fact no efforts at representation were being undertaken on his behalf;

(e) by failing to inform plaintiff that the statute of limitations for any claim he might have against the manufacturer or other persons responsible would expire on or about January 14, 1993;

(f) by failing to inform plaintiff at any time before the statute of limitations expired that Widuch would not be able to pursue an action against the manufacturer or other persons and/or entities responsible;

(g) by failing to advise plaintiff to consult with an attorney experienced in investigating and prosecuting products liability actions; and

(h) by failing to exercise a reasonable degree of skill and care in her representation of plaintiff.

Count II alleged that plaintiff was injured in the same manner on April 14,1993. Widuch allegedly represented plaintiff for these injuries but failed tofile a products liability complaint and to contact plaintiff regarding the needto file suit or settle. The statute of limitations for a products liabilityaction based on this accident expired on April 13, 1995. Plaintiff alleged thesame acts of negligence alleged in count I.

Count III was brought against Koutsky, Boudreau, Lassen & Mason, againstBrian Lassen, and against Kenneth Koutsky based on their malpractice inconnection with the 1991 accident. Allegedly on or before January 14, 1993,defendants associated themselves with Widuch and began representing plaintiff inconnection with the 1991 injury. The count alleged the same acts of negligencealleged in count I.

Count IV was brought against Koutsky, Boudreau, Lassen & Mason, againstBrian Lassen, and against Kenneth Koutsky based on their malpractice inconnection with the 1993 accident. Allegedly on or before August 5, 1993, thesedefendants associated themselves with Widuch and began representing plaintiff inconnection with the 1993 injury. The count alleged the same acts of negligencealleged in count II.

Defendants moved to dismiss the complaint pursuant to section 2-619 of theCode of Civil Procedure (735 ILCS 5/2-619 (West 1998)), arguing in relevant partthat they were retained only for purposes of plaintiff's workers' compensationclaims. In addition, Widuch argued that count II was defective because plaintiffdid not allege that he advised Widuch about the 1993 accident. The basis for theadditional argument would have been section 2-615 of the Code of Civil Procedure(735 ILCS 5/2-615 (West 1998)), but Widuch did not label her motion as beingjointly brought pursuant to sections 2-615 and 2-619.

In opposition to the motions to dismiss, plaintiff filed the affidavit ofDaniel Truesdale. He swore that he had practiced law in Illinois for 15 years,representing hundreds of clients who had suffered workplace injuries.Truesdale's opinion was that the standard of care applicable to defendantsrequired them to screen plaintiff's case to determine if any potential claimsagainst third parties existed, to advise plaintiff that he could file a claimagainst the manufacturer, and to either advise plaintiff of his options againstthe third party or to advise him to seek an opinion from a qualified attorney ifthey did not feel qualified to render such advice. He further opined thatdefendants failed to comply with the standard of care in their representation ofplaintiff and that their failure proximately caused injuries to plaintiff.

The motions to dismiss the complaint were granted, and plaintiff appealed.

ANALYSIS

Plaintiff argues that defendants' duties to him were not limited by the formattorney-client representation agreements but arose out of the attorney-clientrelationship. Plaintiff contends that a workers' compensation attorney has aduty to inform his client of the possibility of third-party recovery because thetypical injured worker is a layman who would not have a full understanding ofhis legal options. Defendants respond that their duty was defined solely bytheir contracts and that they were not obligated under the contracts to providerepresentation in third-party actions.

Section 2-619(a)(9) provides for dismissal on the basis that the claimsasserted were barred by affirmative matter avoiding the effect of or defeatingthe claim. 735 ILCS 5/2-619(a)(9) (West 1998). A trial court should grant amotion for involuntary dismissal pursuant to section 2-619 if, after construingthe documents supporting the motion in the light most favorable to the partyopposing the motion, the trial court finds no disputed fact issues (Meyers v.Rockford Systems, Inc., 254 Ill. App. 3d 56, 61, 625 N.E.2d 916 (1993)) andfinds no set of facts can be proved that would entitle plaintiff to recover (Nikolicv. Seidenberg, 242 Ill. App. 3d 96, 98-99, 610 N.E.2d 177 (1993)). Forpurposes of the motion to dismiss, all well-pleaded facts in the pleading aswell as reasonable inferences to be drawn from those facts are taken as true. WaterfordExecutive Group, Ltd. v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 343, 633N.E.2d 1003 (1994).

On appeal the reviewing court must consider whether there were genuine issuesof material fact that precluded dismissal or, absent such facts, whetherdismissal was proper as a matter of law. Kedzie & 103rd CurrencyExchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732 (1993).Whether a dismissal pursuant to section 2-619 is proper is a matter of law, andwe review the trial court's ruling de novo. McGee v. State FarmFire & Casualty Co., 315 Ill. App. 3d 673, 680, 734 N.E.2d 144 (2000).

The elements of a cause of action for attorney malpractice are (1) anattorney-client relationship; (2) a duty owed by defendant to plaintiff arisingout of that relationship; (3) a breach of that duty on the part of defendant;(4) a proximate causal relationship between defendant's breach and the damagessustained by plaintiff; and (5) damages. Metrick v. Chatz, 266 Ill. App.3d 649, 652, 639 N.E.2d 198 (1994). A complaint for attorney malpractice can besought on either a contract or tort theory. Collins v. Reynard, 154 Ill.2d 48, 50, 607 N.E.2d 1185 (1992).

Widuch argues that an attorney's duty to her client is limited by the scopeof the representation sought by plaintiff and undertaken by defendant--in thiscase, the retainer contract limited the duty of Widuch to pursue a workers'compensation claim. See Majumdar v. Lurie, 274 Ill. App. 3d 267, 270, 653N.E.2d 915 (1995) (a malpractice action arises out of either an express orimplied contract and consequently, because the duty owed arises out of acontractual relationship, it is necessarily limited by the scope of the contractof employment).

However, not all duties of an attorney are limited to the terms of theattorney-client agreement. For example, the requirement of competence is a dutytraditionally imposed in the attorney-client relationship that exists withoutregard to the terms of a contract of employment. Collins, 154 Ill. 2d at55-56. Another duty that exists independently of a written contract is the dutyto provide advice to the client about legal remedies. See Metrick, 266Ill. App. 3d at 653 (in a case involving allegations that the attorney did notdisclose to the clients the advantages of different types of bankruptcyproceedings, the court stated that it is the duty of every attorney to inform aclient of the available options for alternative legal solutions as well as toexplain the foreseeable risks and benefits of each).

In addition, the attorney has a duty to inform a client about the scope ofthe attorney's representation. See 134 Ill. 2d R. 1.2(c) (a lawyer may limit theobjectives of the representation if the client consents after disclosure).Although a representation agreement may limit the scope of representation to aparticular legal course of action, the client must be made to understand thatthe course of action is not the sole potential remedy and that there exist othercourses of action that are not being pursued. See G. Hazard & W. Hodes, TheLaw of Lawyering