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Law School Case Brief

Nichols v. Keller - 15 Cal. App. 4th 1672, 19 Cal. Rptr. 2d 601 (1993)


The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone. Entry of summary judgment in favor of the defendant in a professional negligence action is proper where the plaintiff is unable to show the defendant owed such a duty of care. Absent the existence of a duty by the professional to the claimant, there can be no breach and no negligence.


Plaintiff client, who was injured in an industrial accident, brought a legal malpractice action against two defendants, the attorney who originally accepted the client's workers' compensation case and the attorney who was hired to assist. The client claimed that defendants failed to properly advise him of the possibility of third party claims. The trial court entered summary judgment in favor of defendants, and plaintiff appealed.


Did the attorneys breach their duty of care in failing to advise plaintiff client about the third party claims?




The Court of Appeal reversed the orders granting summary judgment to defendants. It held that even if defendants were retained solely to prosecute plaintiff's workers' compensation claim, the foreseeability of harm to plaintiff resulting from the failure to advise plaintiff of a third party claim compelled a finding a duty on the part of defendants. If counsel elects to limit or prescribe his representation of the client, i.e., to a workers' compensation claim only without reference or regard to any third party or collateral claims which the client might pursue if adequately advised, then counsel must make such limitations in representation very clear to his client. Thus,  a lawyer who signs an application for adjudication of a workers' compensation claim and a lawyer who accepts a referral to prosecute the claim owe the claimant a duty of care to advise on available remedies, including third party actions.

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