## Facts

- Rosemary E. Smith retained attorney Jerome R. Lewis in 1967 to represent her in a divorce from General Clarence D. Smith.
- During the marriage, General Smith earned retirement benefits through state and federal programs, including both contributory and noncontributory plans.
- Smith testified that Lewis advised her the retirement benefits were not community property.
- In the divorce proceedings, Lewis did not identify or assert any claim to the retirement benefits as community property, and they were omitted from the property division.
- After entry of the divorce decree, Smith sought to amend the decree to include the retirement benefits; the motion was denied as untimely.
- Smith obtained new counsel and sued Lewis for legal malpractice; a jury found for Smith and judgment was entered.
- Lewis appealed, arguing the law on characterization of such retirement benefits was uncertain at the time of his representation and therefore he should not be liable.

## Issues

1. Whether divorce counsel commits malpractice by failing to investigate and assert a client’s community property claim to retirement benefits earned during marriage.
2. Whether claimed uncertainty in then-existing law regarding retirement benefits (including noncontributory and federal benefits) shields an attorney from negligence liability.
3. Whether the evidence supported causation and damages based on loss of the client’s community share in the retirement benefits.

## Decision

- The Supreme Court of California affirmed the judgment on the jury verdict for Smith.
- The court held Lewis was negligent in failing to research and assert Smith’s community property interest in retirement benefits earned during marriage.
- The court rejected the argument that alleged uncertainty in the law excused a total failure to raise any claim where available authority provided at least a substantial basis for doing so.
- The court left undisturbed the jury’s findings that the negligence caused Smith to lose a community property interest and that damages could be measured by the value of that lost interest.

## Legal Principles

- An attorney must exercise the skill, prudence, and diligence commonly possessed and exercised by lawyers in similar circumstances.
- Competent representation includes undertaking reasonable legal research to identify relevant principles and making an informed professional judgment based on that research.
- An attorney is not liable for a reasonable, informed choice on a genuinely unsettled question, but “unsettled law” does not excuse ignoring available authority or failing to recognize and protect a reasonably apparent claim.
- In marital property matters, when retirement benefits were earned during marriage and existing authority supports community characterization (or at least a colorable claim), counsel must investigate and assert the client’s potential community interest.

## Conclusion

The court affirmed malpractice liability because divorce counsel failed to conduct reasonable research and failed to assert any community property claim to retirement benefits earned during marriage, and the jury could reasonably find that this omission caused the client to lose a valuable community share.


Smith v. Lewis, 13 Cal. 3d 349 (Cal. 1975)