## Facts

- Warren Nichols, a union boilermaker working at a construction project, was injured when a piece of steel allegedly fell from above and struck his head while he was on scaffolding approximately 50 feet high.
- Nichols and his wife met with attorney E. Paul Fulfer to discuss the accident and Nichols’s legal rights and remedies.
- Fulfer had Nichols sign, and then filed, a workers’ compensation application and handled the workers’ compensation matter.
- The attorneys did not advise Nichols about potential third-party personal injury claims arising from the accident or about the statute of limitations for such claims.
- After the limitations period expired, Nichols learned from another attorney that a third-party action might have been viable, but was then time-barred.
- Nichols sued Fulfer, Edward C. Keller, and their firm for legal malpractice based on the failure to advise of potential third-party remedies and time limits.

## Issues

1. Whether attorneys retained to assist with a workers’ compensation claim owed a duty to advise an injured worker about reasonably apparent third-party civil remedies, or at least warn the client to promptly investigate such remedies.
2. Whether Nichols produced sufficient evidence to create a triable issue that an underlying third-party claim was potentially meritorious, supporting causation and damages in malpractice.

## Decision

- The Court of Appeal reversed the summary judgments entered for the defendant attorneys and remanded for further proceedings.
- The court held that summary judgment was improper on duty because counsel who undertakes to advise an injured worker about an accident and related rights must alert the client to reasonably apparent alternative remedies, including third-party actions.
- The court held that summary judgment was also improper on causation because Nichols presented enough evidence to raise a triable issue that a third party (including entities responsible for site safety) could have been negligent.

## Legal Principles

- The scope of an attorney’s duty is informed by the reasonable expectations created by the representation, not solely by a narrow characterization of the engagement.
- An attorney advising an injured worker about an accident must identify and disclose legal remedies that are reasonably apparent, including the possibility of third-party civil claims, or at least advise the client to promptly consult other counsel regarding those claims.
- A “limited retention” does not excuse counsel from warning a client about obvious, accident-related rights and time limits that a competent attorney should recognize.
- In legal malpractice, a plaintiff must show duty, breach, causation, and damages; at the summary judgment stage, the plaintiff need only present evidence sufficient to show a triable issue on the viability of the underlying claim.

## Conclusion

The court held that workers’ compensation attorneys who undertake to advise an injured client about an accident may be liable for failing to warn of reasonably apparent third-party civil remedies and applicable time limits, and it allowed the malpractice action to proceed because triable issues existed on both duty and the potential merit of the lost third-party claim.


Nichols v. Keller, 15 Cal. App. 4th 1672 (Cal. Ct. App. 1993)