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Professional Responsibility Keyed to Hazard
Smith v. Lewis
Facts
While representing Smith (Plaintiff) in a divorce action, Lewis (Defendant) advised Plaintiff that her husband’s state and federal retirement benefits as a general to the California National Guard were not community property. Therefore, the retirement benefits were not pleaded as community property and were not considered in the litigation nor apportioned by the trial court. Later on, Defendant filed a motion to amend the decree to include the retirement benefits, but the motion was denied for untimeliness. Shortly after consulting other counsel, Plaintiff filed a malpractice action against Defendant. Defendant argued that the law characterizing retirement benefits was so unclear at the time he represented Smith (Plaintiff) that he was insulated from liability for failing to assert a claim on her behalf. The jury found for Smith (Plaintiff). Lewis (Defendant) appealed.
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