Davis v. Damrell
174 Cal. Rptr. 257, 119 Cal.App.3d 883, 1981 Cal. App. LEXIS 1785 (1981)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An attorney is not liable for malpractice for an error in judgment on a doubtful or debatable point of law, provided the advice was based on reasonable research and an informed judgment. There is no additional duty to advise the client about the unsettled nature of the law itself.
Facts:
- In 1970, Davis retained attorney Frank C. Damrell, Sr., to represent her in a divorce proceeding.
- Davis's husband, David K. McMillin, was a career Army officer with a vested right to a federal military pension.
- Davis specifically inquired whether she had a community property interest in her husband's military pension.
- Damrell advised Davis that federal military pensions were not considered divisible community property under California law at that time.
- Relying on this advice, the parties' property settlement agreement made no provision for distributing the military pension.
- In 1973, McMillin retired and began receiving his pension payments.
- In 1974, the California Supreme Court, in a separate case, definitively held for the first time that vested military retirement benefits were community property subject to division.
Procedural Posture:
- Davis filed a complaint for legal malpractice against Damrell in a California trial court.
- The trial court granted summary judgment in favor of Damrell.
- Davis, as appellant, appealed the trial court's grant of summary judgment to the California Court of Appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is an attorney liable for legal malpractice for giving an incorrect opinion on an unsettled point of law, if the opinion was based on reasonable research and an informed professional judgment?
Opinions:
Majority - Racanelli, P. J.
No. An attorney is not liable for an error in judgment on a debatable point of law if that judgment was informed and made in good faith. The court established a two-pronged inquiry: 1) whether the state of the law was unsettled at the time the advice was rendered, and 2) whether the advice was based on the exercise of an informed judgment. Here, the community property character of federal military pensions was substantially uncertain in 1970 and was not settled until the 1974 'Fithian' decision. The record showed that Damrell, a former judge with extensive experience, was fully aware of the relevant precedents and legal debate, and his advice represented a reasoned exercise of professional judgment. The court also held that an attorney has no duty to advise a client on the unsettled nature of a legal principle, as this would undermine the purpose of the error-in-judgment rule and the attorney's role in exercising professional discretion.
Analysis:
This decision reinforces the 'error-in-judgment' rule, which protects attorneys from liability for failing to predict the evolution of legal doctrine. It clarifies that the standard of care for attorneys is not perfection or prescience, but rather the exercise of informed judgment based on adequate research of the law as it exists. By rejecting a duty to advise clients of legal uncertainty, the court shields attorneys from claims that they failed to pursue every remote or tenuous legal theory. This provides a significant safe harbor for lawyers giving advice in unsettled or developing areas of law.
