Smith v. Lewis Essay Example
Smith v. Lewis Essay Example

Smith v. Lewis Essay Example

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  • Pages: 5 (1292 words)
  • Published: May 6, 2017
  • Type: Case Study
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This case confirms that the legal profession is like a jealous mistress which requires of a lawyer that degree of vigilance and attention expected of a good father of family.

A lawyer must exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of business he undertakes to do.  The client expects from his lawyer that he possesses the requisite degree of learning, skill and ability which is necessary to the practice of his profession and which others similarly situated possesses.  To what extent the lawyer is required to discharge that duty has been answered in the case of Smith v. Lewis.Facts from the Point of View of Rosemary E. Smith Plaintiff is Rosemary E. Smith who was married to General Clarence D.Smith.

Defendant is Jerome R. Lewis, an attorney hired by the plaintiff to represent her in the divorce action she filed aga

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inst her husband.  Plaintiff filed a suit for legal malpractice against the defendant in connection with the legal services rendered by the defendant.  Plaintiff contends that defendant negligently failed in the divorce action to assert her community interest in the retirement benefits of her husband.

Plaintiff claims that she has community interest over the retirement benefits of her husband.  It appears that from 1945 until Gen. Smith’s retirement in 1996 he was employed by the California National Guard.  For his long years in public service, General Smith was entitled to receive several retirement benefits.

These are the State Employees’ Retirement System which is a contributory retirement plan, the California National Guard retirement program which is a noncontributory plan.  In addition, he was also qualified for separate non-contributory retirement benefits from

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the federal government.

On February 17, 1967, plaintiff retained the legal services of the defendant to represent her in a divorce action against General Smith.  Defendant advised her that her husband’s retirement benefits were not community property and so these benefits will not be included in the divorce complaint as part of their assets.  A complaint for divorce was filed and the retirement benefits were not included and pleaded as items of the community property.  The divorce was granted and the plaintiff was awarded $400 per month in alimony and child support.

Later, defendant filed a motion to amend the decree alleging that because of his mistake, inadvertence and excusable neglect the retirement benefits of General Smith had been omitted from the list of community assets owned by the parties.  The motion was denied.  Plaintiff consulted another counsel about the community property.  She now files this suit for legal malpracticePlaintiff expected the defendant to possess knowledge of plain and elementary principles of law which are commonly known among well informed attorneys.

She also expected her counsel to be good researcher such that even if he is not familiar with the general principles of law he is still capable of giving the right legal advice after a general research has been made on a particular subject matter.

Defendant Lewis, however, failed to discharge his duty to his client for the following reasons:

  • As early as 1967, legal experts and known legal authors uniformly believe that vested retirement benefit earned during marriage forms part of the community property.  Defendant even admits that he is familiar with a statement found in The California Family Lawyer confirming that pension or retire­ment benefits are

community property.  The community character of retirement benefits is even confirmed and followed by the trial courts in the cases of Benson v. City of Los Angeles and French v. French.

  • It is not denied that at the time Lewis’ legal service was sought there was substantial controversy insofar as the community character of the federal pension of General Smith.  At that time the federal payment was contingent upon survival of General Smith to age 60 making the federal pension benefit a mere expectancy.  The same however is unavailing since the federal retirement benefit of the respondent constitutes only a small portion of his retirement benefits.  Insofar as the rest of his retirement benefits there is no doubt that the same constitutes community property.
  • The defendant failed to present evidence that will prove that he performed adequate research into the question of whether the retirement benefits of General Smith constitutes community property.
  • On the contrary, there is sufficient evidence that he failed to conduct his research on this particular subject matter.  His failure to do so constituted negligence which caused serious prejudice to his client’s interest.Arguments for Jerome R. Lewis There is no hard-and-fast rule in determining if the defendant is guilty of negligence.  Everything will have to depend on the facts and circumstances of the case.Defendant Lewis was not new in the field of Domestic Relations and Divorce.

    Several years before he had accepted this case, he had been exposed to the community property aspect of pensions.  When he handled the case of the wife of a reserve officer in the National Guard, defendant alleged that the retirement benefits of the Armed Forces and the California

    National Guard is included in the community property.  In connection with the divorce action he handled in 1967, he admitted that the retirement benefits were community property.  He merely questioned that the amount thereof.  In another case where he represented an army colonel, defendant filed a cross complaint for divorce specifically setting up as an item of community property the retirement benefits in the name of the defendant with the United States Government. Defendant however thought that the issue Gen. Smith’s pension was highly doubtful and debatable.

    There are two reasons for the same:

    1. the case of Williamson v. Williamson (203 Cal.App.2d 8) and
    2. the case of Benson v. City of Los Angeles (60 Cal.2d 355)

    In the case of Williamson, the court ruled that pensions will be included in the community property only if the employee has received the benefits or if he is certain to receive his benefits.

    Considering that Gen. Smith will receive his pension payments only upon reaching 60 years of age and subject to the condition that the employee is still alive at that time, his pension benefit is a mere expectancy which may or may not happen.  Since he is not certain that that he will still be alive by the time he reaches the age of 60, then his pension should not be included in the community property. The case of Benson also provided insight on why pension benefits should not form part of the community party.

    It is public policy not only to permit a governmental body to make reasonable changes to a retirement system but also to attract competent employees.

    These two public policies will be defeated if the wife will

    be given vested right in the pension of a government employee for the following reasons:

    • the government will not have flexibility insofar as the making modifications and changes in the retirement system;
    • there will no sufficient incentive for competent employees to go to public service if they know that their spouses shall have vested right on their retirement benefits.

    Considering the uncertainty on the principle of law involved in this case, it would have been futile for the defendant to pursue a highly debatable claim and risk losing not just her share of the retirement benefits but also the alimony which she was entitled to.  Thus, he adopted the legal strategy of opting for the easiest way he could secure the divorce and receive alimony for his client which is already a substantial sum instead of fighting for the subject pension benefits which she may end up losing and he may receive less than what the court actually awarded her. BibliographyLarson, Aaron.  Legal Malpractice Law and Litigation.

    Retrieved July 24, 2007 from:http://www.expertlaw.com/library/malpractice/legal_malpractice.html

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