Ishmael v. Millington

• Decision Date: 15 April 1966
• Citation: 241 Cal.App.2d 520,50 Cal.Rptr. 592
• Court: California Court of Appeals Court of Appeals
• Parties: Roberta M. ISHMAEL, Plaintiff and Appellant, v. Robert MILLINGTON, Defendant and Respondent. Civ. 11079.

Page 592

50 Cal.Rptr. 592

241 Cal.App.2d 520

Roberta M. ISHMAEL, Plaintiff and Appellant, v. Robert MILLINGTON, Defendant and Respondent.

Civ. 11079.

District Court of Appeal, Third District California.

April 15, 1966.

James E. Green, North Hollywood, for appellant.

Rich, Ruidge, Dawson, Marsh, Tweedy & Morris, Marysville, for respondent.

FRIEDMAN, Justice.

This is a legal malpractice action in which the plaintiff-client appeals from a summary judgment granted the defendant-attorney. The factual narrative will possess heightened significance against a backdrop of general doctrine:

Actionable legal malpractice is compounded of the same basic elements as other kinds of actionable negligence: duty, breach of duty, proximate cause, damage. (Hege v. Worthington, Park & Worthington, 209 Cal.App.2d 670, 677, 26 Cal.Rptr. 132; see Modica v. Crist, 129 Cal.App.2d 144, 146--148, 276 P.2d 614; 1 Witkin, Cal. Procedure 73--74.) Touching the first element, duty, the general rule is that 'the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. Estate of Kruger, 130 Cal. 621, 626, 63 P. 31; Moser v. Western Harness Racing Ass'n., 89 Cal.App.2d 1, 7, 200 P.2d 7; Armstrong v. Adams, 102 Cal.App. 677, 684, 283 P. 871; see Wade, The Attorney's Liability for Negligence (1959) 12 Vanderbilt Law Rev. 755, 762--765; 5 Am.Jur. 336.' (Lucas v. Hamm, 56 Cal.2d 583, 591, 15 Cal.Rptr. 821, 825, 364 P.2d 685, 689; see also Leavitt, The Attorney as Defendant, 13 Hastings L.J. 1, 23; Note, 45 A.L.R.2d 5--58.)

Quite without reference to the four basic elements of the traditional negligence analysis, a 1931 California appellate decision announced the following statement of essentials in the pleading and proof of legal malpractice: "First, that there existed the relationship of attorney and client; second, that in connection with such relationship advice was given; third, that he (the client) relied upon such advice and as a result thereof did things that he would not otherwise have done; fourth, that as a direct and proximate result of such advice and the doing of such acts, he suffered loss and was damaged thereby." (McGregor v. Wright, 117 Cal.App. 186, 193, 3 P.2d 624, 627.) No specific ancestry was cited for the quoted statement. It seems to have been coined in the McGregor case. Relative to the element of reliance, the statement was dictum. A later dictum in Modica v. Crist, supra, 129 Cal.App.2d at p. 146, 276 P.2d 14, quoted the McGregor dictum with approval. Although embracing the McGregor formulation of specific malpractice essentials, the Modica case held that in legal malpractice suits negligence may be pleaded in general terms.

In this case the defense is that the client sought no advice from the attorney and was given none; by the client's express admission, she did not rely on the attorney, thus, that her alleged damage was not proximately caused by the attorney's cause of action.

The facts are presented by summary judgment affidavits, which include extracts from depositions. There is no significant conflict in the evidence. Roberta Ishmael, the plaintiff, was formerly married to Earl F. Anders. The couple had three children. They lived in Gridley, where Mr. Anders was a partner in a family trucking business. Domestic difficulties resulted in a separation, and Mrs. Anders moved to Sacramento where she secured employment. She and her husband agreed upon a divorce and property settlement. She knew that she was entitled to one-half the marital property.

Mr. Anders called upon defendant Robert Millington, a Gridley attorney who had for some time represented him and his trucking firm. Mr. Millington advised Anders that if he could establish adulterous conduct by Mrs. Anders, he might be awarded more than one-half the community property. For one reason or another there was a decision that the wife rather than the husband would apply for divorce. At Anders' request Mr. Millington agreed to act as the wife's attorney, to prepare the necessary papers and to file a divorce action for her. He drew up a complaint and a property settlement agreement and handed these documents to Mr. Anders, who took them to Sacramento and had his wife sign them. She knew that Mr. Millington had represented her husband in the past. Faulty recall prevents ascertainment whether Mrs. Anders ever met personally with the attorney before the papers were drawn. She did not discuss the property settlement agreement with the attoney before she signed it. Mr. Millington believed the divorce and property settlement arrangements were 'cut and dried' between the husband and wife; he 'assumed that she knew what she was doing;' he believed that she was actually getting half the property but made no effort to confirm that belief.

In her deposition the former Mrs. Anders testified that in signing the complaint and property settlement agreement she relied solely on her husband and did not rely on the attorney. Later, when so instructed, she traveled to the courthouse at Oroville, where she and her corroborating witness met Mr. Millington. He escorted her through a routine Ex parte hearing which resulted in an interlocutory divorce decree and judicial approval of the property settlement.

According to her complaint, the former Mrs. Anders discovered that in return for a settlement of $8,807 she had surrendered her right to community assets totaling $85,500. Ascribing her loss to the attorney's negligent failure to make inquiries as to the true worth of the community property, she seeks damages equivalent to the difference between what she received and one-half the asserted value of the community.

Summary judgment proceedings are not available where there are issues of fact to be tried; the question posed to the trial court and to this reviewing court is whether the pleading and affidavits disclose triable issues of fact. (Simmons v. Civil Service Empl. Ins. Co., 57 Cal.2d 381, 384, 19 Cal.Rptr. 662, 369 P.2d 262.) There being practically no conflict in the facts, affirmance or reversal turns on a decision whether the trial court undertook to decide issues of fact reserved for jury determination.

In any negligence action the existence of a duty of care owed by the defendant to the plaintiff is a question of law for the court. (Amaya v. Home Ice, etc., Co., 59 Cal.2d 295, 307--308, 29 Cal.Rptr. 33, 379 P.2d 513.) If a duty exists, the complementary degree of care exacted of the defendant--usually that of a reasonable man of ordinary prudence in a like situation--is also declared by law. (Prosser on Torts (3d ed.) pp. 153, 207; Rest., Torts 2d, § 328B.) Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant's conduct violates the boundaries of ordinary care, the doubt must be resolved as an issue of fact by the jury rather than of law by the court. (Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 318, 282 P.2d 12; Mosley v. Arden Farms Co., 26 Cal.2d 213, 217, 157 P.2d 372, 158 A.L.R. 872.) ¹ Given a breach of duty by the defendant, the decision whether that breach caused the damage (that is, causation in fact) is again within the jury's domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. (Basin Oil Co. of California v. Baash-Ross Tool Co., 125 Cal.App.2d 578, 603, 271 P.2d 122; see 2 Witkin, Summary of California Law, 1483--1484; Rest., Torts 2d, § 434; Prosser, Proximate Cause in California, 38 Cal.L.Rev. 369, 375--383, 420--421.)

By the very act of undertaking to represent Mrs. Anders in an uncontested divorce suit, Mr. Millington assumed a duty of care toward her, whatever its degree. Described in terms traditionally applicable to the attorney-client relationship, the degree of care exacted by that duty was that of a figurative lawyer of ordinary skill and capacity in the performance of like tasks. (Lucas v. Hamm, supra, 56 Cal.2d at p. 591, 15 Cal.Rptr. 821, 364 P.2d 685.)

The degree of care is related to the specific situation in which the defendant found himself. The standard is that of ordinary care under the circumstances of the particular case. (Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 80, 265 P.2d 513; see cases cited 2 Witkin, Summary of California Law 1411; Rest., Torts 2d, § 283.) A lawyer owes undivided loyalty to his client. Minimum standards of professional ethics usually permit him to represent dual interests where full consent and full disclosure occur. ² The loyalty he owes one client cannot consume that owed to the other. Most descriptions of professional conduct prohibit his undertaking to represent conflicting interests at all; or demand that he terminate the three-way relationship when adversity of interest appears. ³ Occasional statements sanction informed representation of divergent interests in 'exceptional' situations. Even those statements demand complete disclosure of all facts and circumstances which, in the attorney's honest judgment, may influence his client's choice, holding the attorney civilly liable for loss caused by lack of disclosure. (Allstate Ins. Co. v. Keller, supra, 149 N.E.2d at p. 486; Crum v. Anchor Cas. Co., 264 Minn. 378, 119 N.W.2d 703; Smallwood v. Overseas Storage Co., 263 App.Div. 609, 33 N.Y.S.2d 876, 880--881; see additional cases cited 7 C.J.S. Attorney and Client § 151, note 50.)

Divorces are frequently uncontested; the parties may make their financial arrangements peaceably and honestly; vestigial chivalry may impel them to display the wife as the injured plaintiff; the husband may then seek out and pay an attorney to escort the wife through the formalities of adjudication. We describe ...