290 P.3d 215 (Alaska 2012)
Larry Gjovig was the sole shareholder of L.D.G., Inc., which owned and operated a bar.1 One night in 1998 the bar served R.V. Freeman alcohol; later that night Freeman shot and killed Tracy Eason.2 Freeman was subsequently convicted of first-degree murder.3
In 2000 the personal representative of Eason's estate filed a wrongful death suit against L.D.G. and Gjovig under Alaska's dram shop act, alleging that the bar had violated the act by serving alcoholic beverages to Freeman while visibly intoxicated and proximately causing Eason's death.4 The estate did not sue Freeman.5 L.D.G. retained Arthur S. Robinson to defend the suit.6
Robinson did not seek to join Freeman to the action or assert a third-party claim against him for allocation of fault.7 The case proceeded to trial and was submitted to a jury.8 The jury found that an employee of the bar with criminal negligence allowed Freeman to consume alcohol when he was a drunken person.9 The jury also found that it was more likely true than not that Freeman would not have killed Eason but for his intoxication.10 Yet the jury declined to find that Freeman's intoxication was a substantial factor in bringing about Eason's death.11
Following the jury's verdict, the estate moved for judgment notwithstanding the verdict and a damages trial.12 The superior court granted the motion.13 This effectively attributed 100 percent of the fault to L.D.G.14 After a trial on damages, the superior court entered judgment of $945,911.95 against L.D.G.15 The Alaska Supreme Court affirmed the judgment after L.D.G.'s appeal.16 Robinson represented L.D.G. at all stages.17
L.D.G. then sued Robinson.18 L.D.G. alleged that his representation fell below the standard of care when he did not attempt to add Freeman to the underlying action for allocation of fault.19 Robinson moved to dismiss for failure to state a claim, arguing that Alaska's dram shop case law was unsettled on whether alcohol sellers could apportion fault to consumers.20 The superior court granted the motion to dismiss.21 L.D.G. appealed that dismissal.22
Whether an attorney may be held liable for legal malpractice for failing to attempt to join an intoxicated patron for allocation of fault in a dram shop action when the law on that issue was unsettled at the time of the representation?23
An attorney owes a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise.24 When the law is unsettled on a material issue, this duty requires the attorney to advise the client of the reasonably prudent course of action in light of the uncertainty.25 An error in judgment regarding unsettled law does not immunize the attorney from liability for malpractice.26
Yes. The rule applies directly to the established facts in which L.D.G. retained Robinson to defend the dram shop action.27 Robinson did not seek to join Freeman for allocation of fault.28 The law was unsettled following the footnote in Loeb reserving issues related to multiple defendants under pure several liability.29 The decision in Doe establishes that uncertainty makes the failure to pursue the prudent course more blameworthy rather than less.30 The cost of attempting to add Freeman was slight when compared to the potential cost of attributing one hundred percent of the fault to L.D.G. as occurred after the judgment notwithstanding the verdict.31
Therefore, the allegations in the complaint supported a viable claim that Robinson breached his duty of care.32
An attorney may be held liable for legal malpractice even when the law on the strategic decision was unsettled at the time of the representation.33
Whether a superior court may properly dismiss a legal malpractice complaint on the pleadings solely because the law regarding the attorney's strategic decision was unsettled?34
A motion to dismiss for failure to state a claim under Alaska Civil Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle the plaintiff to relief.35 Allegations that an attorney's conduct fell below the standard of care are sufficient to survive dismissal even if the law was unsettled at the time.36
No. The superior court granted the motion to dismiss based on the unsettled nature of the law from Loeb.37 This was error because Doe establishes that unsettled law does not provide immunity.38 The complaint alleged facts consistent with a viable malpractice claim.39 L.D.G. alleged that Robinson did not attempt to add Freeman to the underlying action for allocation of fault despite the uncertainty created by the Loeb footnote on multiple defendants and pure several liability.40
The superior court improperly concluded that Robinson could not as a matter of law breach his duty of care by following Loeb without weighing the prudent course under Doe.41 Motions to dismiss are disfavored.42 The complaint set forth allegations appropriate to an enforceable cause of action for malpractice.43
A superior court may not properly dismiss a legal malpractice complaint on the pleadings solely because the law regarding the attorney's strategic decision was unsettled.44