Aloy

I

Marcella G. Aloy, plaintiff in a legal malpractice action, appeals from a summary judgment for defendant Eugene A. Mash, her former attorney in a 1971 dissolution action against her husband Richard. Marcella’s claim of legal malpractice is based on defendant’s failure to assert a community property interest in Richard’s vested military retirement pension. 1

Marcella employed defendant Mash in January 1971 to represent her in the dissolution action. Richard was then on active military service and was therefore not receiving a pension although he had been in the service for over 20 years and was eligible to retire. ( 10 U.S.C. § 8911 .) Defendant failed to claim any community property interest in Richard’s pension and it was not put in issue in the dissolution action. The final decree of dissolution was entered in December 1971. Richard retired sometime between 1971 and 1980.

*416 In 1971, the California view regarding the characterization of vested federal military retirement pensions as community or separate property was unsettled. In 1974, however, we held that federal preemption did not bar treating such federal military pensions as community property. (In re…

I respectfully dissent. With the exception of the majority opinion, I know of no case which suggests that an attorney whose advice is correct may be held liable for malpractice.

*423 Relying on the standard developed in Smith v. Lewis (1975) 13 Cal.3d 349 [ 118 Cal.Rptr. 621 , 530 P.2d 589 , 78 A.L.R.3d 231 ] and its progeny, 1 the majority concludes that an attorney may face malpractice liability despite the fact that the law is ultimately resolved in accordance with the advice given. Although this application of the Smith standard follows logically from its emphasis on the duty of care owed a client, it nonetheless raises a troubling anomaly: where the law is unsettled, the attorney who gives advice later determined to be correct may well have committed malpractice, while the attorney whose advice turns out to be erroneous may avoid liability entirely.

The law cannot tolerate such incongruous results. As Justice Holmes so aptly observed long ago, “[t]he life of the law has not been logic: it has been experience. ” (Holmes, Common Law (1881) p. 1.) Experience now tells us that the Smith standard, however rational and well-suited to its original purpose, no longer makes sense.…