Chapter 36 - § 36.11 • AVOIDING MALPRACTICE

• Jurisdiction: Colorado

§ 36.11 • AVOIDING MALPRACTICE

The importance of diligence in military dissolution cases cannot be overstated. The following are military retirement division cases where an attorney was determined by the court to be negligent and dollar judgments entered. Needless to say, ethics violation complaints would not be far behind.

In Aloy v. Mash, 696 P.2d 656 (Cal. 1985), the California Supreme Court determined an attorney was negligent where he failed to claim any interest in a military member's military retirement, even though the military member was still on active duty for more than 20 years. The court determined attorney negligence based, in part, on the fact that California (prior to McCarty) held that military retirement was divisible. In its decision, the California court relied on Smith v. Lewis, 530 P.2d 589 (Cal. 1975), a legal malpractice case based on an attorney's 1967 failure to claim a community property interest in the husband's vested retirement benefits. (Based on Hunt, Colorado has ruled that a former spouse has an interest in non-vested military retirements.) In Smith, the wife advised attorney Lewis that the military member, General Smith, was employed by the State of California and would receive a retirement under California law as an employee. She also advised Lewis that General Smith was a member of the California National Guard and would receive a federal military retirement at age 60. Lewis advised his client, out of hand, that General Smith's retirement benefits, both state and federal military, were not community property assets. The attorney failed to disclose the future retirement benefits as assets, and therefore they were not considered in the litigation or apportioned by the trial court.

In sustaining a jury verdict against Lewis for $100,000, the California Supreme Court determined that the attorney's failure to conduct any reasonable research into the proper characterization of the retirement benefits under community property law, in addition to his dogmatically asserted theory that the retirement benefits were not community property assets, amounted to malpractice.

In Martin v. Northwest Washington Legal Services, 717 P.2d 779 (Wash. App. 1986), the legal services entity was found negligent in a 1974 dissolution case. The State of Washington's law was that military retirement was community property. The wife sought the aid of the legal services office in obtaining a divorce from the husband, who was then on active duty with the U.S. Air Force and had completed 20 years of service. The legal aid office was aware that the husband was a member of the armed forces but did not advise the wife of any rights she had in her husband's pension and did not seek a division of the pension in the dissolution action.

In 1981, the former wife became aware that under Washington law, she might have been entitled, in 1974, to a community property interest in the former husband's military retirement. She brought a lawsuit for negligence, and the verdict was entered in her favor, even though at the time the negligence action was brought, the U.S. Supreme Court had entered its decision in McCarty denying former spouses an interest in military retired pay under the Supremacy Clause of the U.S. Constitution.

The Washington Court of Appeals determined that the law of the State of Washington in 1974 was that the wife was entitled to her share of the military retirement and that the legal aid office was negligent in 1974 by its failure to properly raise this issue. Judgment...