## Facts

- Stella G. Davis retained attorney Frank C. Damrell, Sr. in 1970 to represent her in a marital dissolution.
- Davis’s husband, a career Army officer, had a vested right to a federal military retirement pension upon retirement.
- Davis asked Damrell whether the military retirement pension included a community property interest.
- Damrell advised Davis that the federal military pension was not divisible community property.
- The dissolution property settlement agreement included no provision allocating any community interest in the pension.
- The husband retired in 1973 and began receiving pension payments.
- In 1974, the California Supreme Court held that vested retirement benefits, including federal military pensions, are community property subject to equal division upon dissolution.
- Davis sued Damrell for legal malpractice, alleging he negligently failed to advise her that the law was unsettled and that she could litigate or preserve a claim to the pension.

## Issues

1. Whether an attorney commits malpractice by advising that a federal military pension is not divisible community property when, at the time, the law is unsettled and later authority reaches the opposite result.
2. Whether an attorney has a duty, when the law is debatable, to advise the client of the uncertainty and the option to litigate or preserve the claim.

## Decision

- The Court of Appeal affirmed summary judgment for Damrell and his firm.
- The court held that, in 1970, the community property status of federal military pensions was unsettled, and Damrell’s advice fell within reasonable professional judgment.
- The court concluded Damrell had no malpractice liability for failing to predict the later decision recognizing such pensions as community property.
- The court determined plaintiff’s showing, including expert opinion, did not create a triable issue of breach because the advice was objectively reasonable given then-existing authority and federal preemption concerns.

## Legal Principles

- An attorney is not a guarantor of correct predictions about future legal developments.
- When the governing law is doubtful or debatable, an attorney who acts in good faith and exercises informed professional judgment is not liable for a mere error in judgment.
- Malpractice requires a showing that counsel’s conduct fell below the standard of care measured at the time of representation, not by later-decided cases.
- Summary judgment is proper where, even considering plaintiff’s expert evidence, no reasonable factfinder could conclude the attorney’s advice on an unsettled legal question was outside the range of competent practice.

## Conclusion

The court held that counsel’s 1970 advice about the nondivisibility of a federal military pension, given the unsettled state of the law and plausible federal preemption readings at the time, was not negligent as a matter of law; attorneys are not liable in malpractice for failing to foresee later doctrinal change.


Davis v. Damrell, 119 Cal. App. 3d 883 (Cal. Ct. App. 1981)