While Lewis (Defendant) was representing Smith (Plaintiff) in a divorce action and failed to include, as part of the community the retirement benefits earned by Smith’s (Plaintiff) husband during their marriage, Smith (Plaintiff) brought this malpractice action against Lewis (Defendant).
An attorney is expected to perform enough research to enable him to make an informed and intelligent judgment on behalf of his client, including matters of doubt
While representing Smith (Plaintiff) in a divorce action, Lewis (Defendant) advised Plaintiff that her husband’s state and federal retirement benefits as a general to the California National Guard were not community property.Â Therefore, the retirement benefits were not pleaded as community property and were not considered in the litigation nor apportioned by the trial court.Â Later on, Defendant filed a motion to amend the decree to include the retirement benefits, but the motion was denied for untimeliness.Â Shortly after consulting other counsel, Plaintiff filed a malpractice action against Defendant. Defendant argued that the law characterizing retirement benefits was so unclear at the time he represented Smith (Plaintiff) that he was insulated from liability for failing to assert a claim on her behalf.Â The jury found for Smith (Plaintiff).Â Lewis (Defendant) appealed.
Is an attorney expected to perform enough research to enable him to make an informed and intelligent judgment on behalf of his client, including matters of doubt?
(Mosk, J.)Â Yes.Â An attorney is expected to perform enough research to enable him to make an informed and intelligent judgment on behalf of his client, including matters of doubt. Â An attorney must exercise the skill, prudence, and diligence that lawyers of ordinary skill and capacity normally possess and exercise when performing the tasks they take on.Â Four years prior Plaintiff retained Lewis in Benson v. City of Los Angeles, 60 Cal. 2d 355 (1963), this court stated directly that â€œpension rights which are earned during the course of a marriage are the community property of the employee and his wife.â€Â At the time of Smith’s (Plaintiff) divorce action, there was no significant authority that proposed a different outcome.Â Lewis (Defendant) basically rendered bad advice to Smith (Plaintiff), against her best interests, without researching authority that was readily available.Â Affirmed
(Clark, J.)Â Even assuming that Lewis (Defendant) negligently failed to research the pension questions, the record does not show that his negligence, rather than the uncertain status of the law and the availability of uncontested alimony, caused Smith (Plaintiff) to lose a pension award
Normally a lawyer does not guarantee the soundness of his opinions, and therefore, is not liable for every mistake he may make in his practice.Â Here, the record documented Lewis’s (Defendant) failure to conduct any reasonable research into the proper characterization of retirement benefits under community property law.Â Instead, he assumed they were separate property not subject to community treatment and dogmatically asserted that theory, which he was not able to support with authority.