When someone is injured on the job, it takes a skilled lawyer to help them navigate the worker’s compensation process. While this practice area feels foreign to many practitioners, you are uniquely qualified to handle what can be a complex and emotional process for your client. However, because your legal services may be solely limited to a worker’s comp claim, it is critical to explicitly state the scope of your representation in your engagement letter. In other words, a high resolution review of your form fee agreement is required before securing the client’s signature to ensure you narrowly tailor it to the intended representation.

In the workers’ comp context, your client may have other claims in addition to their right to workers’ compensation benefits. Specifically, an equipment malfunction or the negligence of a third party vendor on the job site could have contributed to their injuries. As such, it is critical to limit your representation to the worker’s comp claim only and specifically state that you are not providing any legal services related to any third-party liability, product liability, or other potential claims the client may have. Further, you should advise your client in writing that they should immediately seek another attorney to handle these potential claims. Why? A misunderstanding of what legal work you have been retained to provide could result in the client losing the opportunity to pursue a related claim. Further magnifying this forfeiture of a potential claim is the possibility of a malpractice claim against you. How? If your documentation is insufficient to show you excluded certain work or that you failed to advise the client to hire another lawyer to assist with these claims, you could be at risk for a malpractice claim.

When it comes to workers’ compensation engagement letters, the importance of clearly defining the scope of representation cannot be overstated. Because a workplace injury could involve additional claims even beyond what is mentioned above, such as a premises liability claim or a retaliation claim, the more precise the carve out of these claims, the less room the client has to argue about the scope of representation. For example, in Kohler v. Polsky, a 2023 New York Supreme Court case, the defendant worker’s comp attorney was successful in defeating a malpractice claim by demonstrating that the work he allegedly failed to perform was beyond the scope of his engagement letter. Further, what seems like a microscopic matter at the outset of the representation could develop into a full-blown claim as more facts about the circumstances of the injury are discovered. So, best to err on the side of carefully excluding all the potential claims and limiting your representation to the worker’s comp matter.

Finally, make sure you discuss the engagement letter with your client so there is no room for misinterpretation about what work you are agreeing to perform. If you believe related claims do exist, document that conversation and your advice that you are not evaluating the potential claims or pursuing them. Send a separate letter recommending that your client hire separate counsel. This correspondence may prove to be the documentation you need to defend yourself against a legal malpractice claim.

So, before your engagement letter or legal services are under the microscope in a malpractice case, put your own fee agreement on the slide. Adjust any blurry language or ambiguity for concise wording so there is no question about the scope of representation in your workers’ comp case.

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