530 P.2d 589 (Cal. 1975)
Rosemary E. Smith married General Clarence D. Smith in 1943.1 Between 1945 and his retirement in 1966 General Smith was employed by the California National Guard.2 As plaintiff testified, she informed defendant her husband "was paid by the state ... it was a job just like anyone else goes to."3 For the first 16 years of that period the husband belonged to the State Employees' Retirement System, a contributory plan.4 Between 1961 and the date of his retirement he belonged to the California National Guard retirement program, a noncontributory plan.5 In addition, by attending National Guard reserve drills he qualified for separate retirement benefits from the federal government, also through a noncontributory plan.6
On January 1, 1967, the State of California began to pay General Smith gross retirement benefits of $796.26 per month.7 Payments under the federal program, however, will not begin until 1983.8 On February 17, 1967, plaintiff retained defendant Jerome R. Lewis to represent her in a divorce action against General Smith.9 According to plaintiff's testimony, defendant advised her that her husband's retirement benefits were not community property.10 Three days later defendant filed plaintiff's complaint for divorce.11
General Smith's retirement benefits were not pleaded as items of community property, and therefore were not considered in the litigation or apportioned by the trial court.12 The divorce was uncontested, and the interlocutory decree divided the minimal described community property and awarded Mrs. Smith $400 per month in alimony and child support.13 The final decree was entered on February 27, 1968.14 On July 17, 1968, pursuant to a request by plaintiff, defendant filed on her behalf a motion to amend the decree, alleging under oath that because of his mistake, inadvertence, and excusable neglect the retirement benefits of General Smith had been omitted from the list of community assets owned by the parties, and that such benefits were in fact community property.15
The motion was denied on the ground of untimeliness.16 Plaintiff consulted other counsel, and shortly thereafter filed this malpractice action against defendant.17 Defendant admits in his testimony that he assumed General Smith's retirement benefits were separate property when he assessed plaintiff's community property rights.18 At trial plaintiff called a witness who had been represented previously by defendant in an unrelated divorce action.19 An economist appearing on plaintiff's behalf as an expert witness testified to the actuarial current value of the benefits payable under the state and federal retirement plans.20 It was the witness' opinion that the state retirement benefits had a present value of $272,954 and the federal benefits were currently worth $49,078.21
Whether defendant attorney was negligent in advising plaintiff that her husband's retirement benefits were not community property and in failing to assert any claim to those benefits in the 1967 divorce action?22
An attorney is liable for malpractice if he fails to possess or exercise the skill and knowledge ordinarily possessed by attorneys in his community.23 The standard is that of the ordinary prudent attorney.24 Even in unsettled areas, an attorney must undertake reasonable research to ascertain relevant legal principles and make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.25
Yes. Defendant failed to undertake any research into the community property character of retirement benefits despite the availability of treatises and cases indicating they were community property.26 Defendant had previously asserted community property claims for pensions in other cases, yet dogmatically asserted without research that all noncontributory military retirement benefits were immune from community treatment.27 The jury could reasonably find this constituted a failure to exercise the skill and knowledge ordinarily possessed by attorneys.28
Defendant was negligent.29
Related opinions on this issue
Joined by Mccomb, J.
Justice Clark dissents on the ground that the law was unclear in 1967.30 No reported California case prior to 1967 stated that a court was empowered to award an employee's future pension benefits to his spouse in a divorce action.31 Strong indications from statutory and case authorities suggested such an award could not be obtained.32
In every reported case where a spouse sought award of the employee's pension, that spouse lost.33 Clark concludes that an ethical, diligent and careful lawyer would have avoided litigation over pension rights and instead would have sought a compensating alimony award for any inequity, as expressly suggested by Kinsey v. Kinsey and Williamson v. Williamson.34
Whether defendant's negligence proximately caused damage to plaintiff?35
To establish liability for negligence, a plaintiff must show defendant's negligence contributed to injury so that "but for" the negligence the injury would not have been sustained.36
Yes. The evidence shows that if plaintiff had been advised that she had an interest in the pension, she would have insisted that her rights be protected in the divorce action.37 Smith testified that if his wife had asserted a claim to the pension, he would have been willing to have the court determine her rights.38 The trial court could reasonably have concluded that if plaintiff had asserted her rights, the court would have awarded her a portion of the pension.39
Defendant's negligence proximately caused damage to plaintiff.40
Related opinions on this issue
Joined by Mccomb, J.
Justice Clark dissents that the record does not furnish a balance of probabilities that defendant's negligence caused plaintiff to lose a $100,000 pension award.41 The uncertain status of the law and the availability of uncontested alimony explain the outcome rather than any negligence.42 An attorney is not liable for errors on issues on which reasonable doubt may be entertained by well-informed lawyers.43
Clark emphasizes that no reported California case prior to 1967 stated that a court was empowered to award an employee's future pension benefits to his spouse in a divorce action. Strong indications from statutory and case authorities suggested such an award could not be obtained, and in every reported case where a spouse sought award of the employee's pension, that spouse lost. Clark concludes that an ethical, diligent and careful lawyer would have avoided litigation over pension rights and instead would have sought a compensating alimony award for any inequity.
Whether the jury's $100,000 damage award was supported by the evidence?44
Valuation is a question of fact for the jury, and its award is supported if within the range of damages suggested by substantial evidence.45
Yes. The economist testified to present values of $272,954 for state benefits and $49,078 for federal benefits, for a total of $322,032 with one-half equaling $161,016.46 The $100,000 award falls well within that range while defendant presented no contrary evidence.47 Valuation is a question of fact for the jury.48
The jury's $100,000 damage award was supported by the evidence.49
Whether the trial court erred in admitting evidence of defendant's prior conduct in representing other clients regarding pension claims and in admitting defendant's declaration filed in support of the motion to amend the divorce decree?50
Evidence of prior conduct is admissible for impeachment when the defendant offers inconsistent testimony about his practices.51 A declaration filed to support a motion to amend may be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the risk of prejudice, but any error is reviewed for harmlessness.52
No. The prior client's testimony was properly admitted to impeach defendant's claim that he always asserted doubtful community property claims.5354 The declaration was erroneously admitted but played only a minor cumulative role amid ample independent evidence of negligence and thus did not affect the verdict.55
The trial court did not commit reversible error in the evidentiary rulings.56