as: 838 P.2d 804)
Court of Alaska.
DOE and John Doe, Petitioners,
THORSNESS, GANTZ, POWELL & BRUNDIN, Respondents.
Denied Dec. 10, 1992.
avoidance of unnecessary fees and costs is part of attorney's
ethical responsibility to client, attorney is not free to neglect
measure that will protect client from clearly foreseeable risk of
harm, merely because there will be some additional cost to
client if measure is taken. Code of Prof.Resp., DR 2-106.
part of attorney's duty to client is duty to advise
client of action client should take in given set of
failure to obtain natural mother's consent to adoption of part
Chickasaw child in full conformity with consent requirements of Indian
Child Welfare Act breached duty of care owed to clients
and constituted negligence or professional
malpractice; despite contention that applicability of Act was uncertain, there
was only one prudent course of action open to prospective
adopting parents. Indian Child Welfare Act of 1978, §§ 2-403,
103(a), 25 U.S.C.A. §§ 1901-1963,
Sema Lederman, Hansen & Lederman, Anchorage, for appellants.
Stephen S. DeLisio, Jill E. Mickelsen, Staley, DeLisio, Cook &
Sherry, Inc., Anchorage, for appellees.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
On consideration of the petition for rehearing filed on July
IT IS ORDERED:
1. Opinion Number 3863, issued by the court on June
30, 1992, is WITHDRAWN.
2. Such opinion is replaced by Opinion Number 3891, issued
on the date of this order.
3. Appellee's petition for rehearing is otherwise DENIED.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
Jane and John Doe [FN1]
filed this appeal when the superior court ordered their attorney
malpractice action dismissed with prejudice. The court concluded, as a
matter of law, that the defendant law firm had not
been negligent. We reach the opposite conclusion and reverse.
In the interest of privacy, fictitious names are used in
When Jane Doe was unable to conceive, her sister, Mary
Roe, agreed to be artificially inseminated, and to allow Jane
to adopt the child produced by such means. The father
of the child was John Doe, Jane Doe's husband. The
Does hired Hughes, Thorsness, Gantz, Powell & Brundin, (hereafter Hughes,
Thorsness) an Anchorage law firm, to handle the adoption.
In the course of obtaining the biological mother's consent to
the adoption, Hughes, Thorsness learned that John Doe is part
Chickasaw Indian. Because of the child's Indian heritage, Hughes, Thorsness
became concerned about the requirements of the Indian Child Welfare
Act. 25 U.S.C. §§ 1901-1963.
the firm was concerned about the need to obtain Mary
Roe's consent to the adoption in conformity with the following
any parent [of an "Indian child"] voluntarily consents ... to
termination of parental rights, such
consent shall not be valid unless executed in writing and
recorded before a judge of a court of competent jurisdiction
and accompanied by the presiding judge's certificate that the terms
and consequences of the consent were fully explained in detail
and were fully understood by the parent....
25 U.S.C. § 1913(a)
25 U.S.C. § 1903
provides in part:
purposes of this chapter ... the term--
"Indian child" means any unmarried person who is under age
eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of
an Indian tribe;
"parent" means any biological parent ... of an Indian child....
Hughes, Thorsness secured Roe's consent to the adoption, in writing,
by the Indian Child Welfare Act. However, despite its concern
about the Act's other requirements, and its professed knowledge "that
if the Act applied, the [Does] would have to comply
with it," [FN3]
Hughes, Thorsness failed to secure completion of the additional steps
needed to make the mother's consent "valid" according to § 1913.
Instead, Hughes, Thorsness recommended that the superior court be allowed
to determine whether the Act applied, and was content to
rest on its oars when the court concluded that it
Brief of Appellee at 3.
Roe's consent to the adoption was accepted by the superior
court in the form in which it was presented, and
the court entered a final decree of adoption terminating the
parental relationship between the child and Roe, its biological mother.
A little more than a year later, Roe moved to
have the decree vacated.
Roe's motion was made upon the ground that her consent
to the termination of her parental rights was invalid, because
it was not obtained in conformity with the requirements of
the Indian Child Welfare Act. Specifically, she complained that her
consent was not "recorded before a judge of a court
of competent jurisdiction and accompanied by the presiding judge's certificate
the terms and consequences of the consent were fully explained
in detail and were fully understood by the parent or
Indian custodian." 25 U.S.C. § 1913(a).
Having lost confidence in Hughes, Thorsness, the Does hired Tugman
& Clark, another Anchorage law firm. Tugman & Clark successfully
defended the adoption *806
decree in the superior court, and when that court's decision
refusing to vacate the decree was appealed to this court,
the decision was affirmed. In
re Adoption of T.N.F.,
781 P.2d 973 (Alaska 1989). Thus, despite the biological mother's
challenge to the adoption, the adoption decree remained undisturbed. From
the Does' standpoint, however, the challenge was a costly affair.
Tugman & Clark tendered the cost of defending the adoption
decree to Hughes, Thorsness, but the tender was refused. Hughes,
Thorsness did, however, provide Tugman & Clark with the results
of its research on the applicability of the Indian Child
Welfare Act, and offered various suggestions on how the adoption
decree might be defended.
Subsequent to these events, the Does sued Hughes, Thorsness for
malpractice. In their complaint they alleged that Hughes, Thorsness was
negligent in failing to
observe the requirements of the Indian Child Welfare Act when
obtaining the natural mother's consent. Such negligence, according to the
complaint, provided the biological mother with the ground that she
later used to challenge the adoption. The Does asked the
superior court for an award of damages, including the amount
of Tugman & Clark's attorney's fees, their other costs in
defending the adoption decree, and compensation for emotional distress they
claim to have suffered as a result of the natural
In the malpractice action, Hughes, Thorsness answered the complaint and
moved for summary judgment; the superior court, after concluding that
there were no genuine issues of material fact, granted the
motion. In the court's view, "[t]he issue [in the case
was] whether [Hughes, Thorsness] ... was liable to the [Does]
for a mere error of judgment, or for a mistake
in a point of law which, at the time of
the advice given, had not been settled by the Alaska
Supreme Court[,] and was a point of law [upon] which
reasonable lawyers could differ." Holding that the defendant's conduct was
not actionable under these circumstances, the court ruled in Hughes,
Thorsness' favor, and ordered the complaint dismissed. This appeal followed.
In past cases involving claims of attorney malpractice, we have
malpractice consists of four elements: "(1) the duty of the
professional to use such skill, prudence, and diligence as other
members of the profession
commonly possess and exercise; (2) a breach of that duty;
(3) a proximate causal connection between the negligent conduct and
the resulting injury; and (4) actual loss or damage resulting
from the professional's negligence."
v. O.K. Lumber Co.,
797 P.2d 638, 640 (Alaska 1990) (quoting Linck
v. Barokas & Martin,
667 P.2d 171, 173 n. 4 (Alaska 1983)). We need
be concerned about only two of these elements in the
case at bar: Hughes, Thorsness' duty to its clients, and
the firm's alleged breach of that duty. [FN5]
The remaining issues in the case, whatever they may be,
are not before us in this appeal.
The ruling below dealt only with Hughes, Thorsness' duty to
the Does, and the alleged breach of that duty. The
remaining elements of the Does' malpractice claim have not been
reached by the superior court, and we do not address
When Hughes, Thorsness undertook to represent the Does in the
adoption, it was required to "have and use the knowledge,
skill and care ordinarily possessed and employed by members of
the [legal] profession in good standing." W. Page Keeton et
al., Prosser and Keeton on the Law of Torts § 32,
at 187 (5th ed. 1984).
Hughes, Thorsness knew that the child being adopted by its
client, Jane Doe, was part Chickasaw Indian. Arguably then the
adoption was subject to the consent requirements of the Indian
Child Welfare Act. Under these circumstances, the risk in failing
to obtain the biological mother's consent to the adoption in
conformity with the Act should have been clear to any
attorney possessed of the required level of professional competence. Such
failure obviously exposed Hughes, Thorsness' clients to the risk of
a later challenge to the adoption decree--in this instance the
risk soon became a reality--upon the ground that the biological
mother's consent to the adoption was not obtained in conformity
with the statutory requirements set forth in 25 U.S.C. § 1913(a).
Nevertheless, Hughes, Thorsness failed to obtain the natural mother's consent
in the proper form.
According to its brief, Hughes,
Thorsness chose not to take this important step because of the added cost
to its clients:
comply with this requirement, the [Does] would have to either
arrange for the [natural mother] to come to Anchorage and
appear before the court at the adoption or file an
ancillary action in California. Either avenue would require more fees
than the [Does] anticipated.
Brief of Appellee at 3.
[FN6] (Citation omitted).
Hughes, Thorsness claims that its actions were influenced by "the
[Does'] preoccupation with incurring legal expenses." Brief of Appellee at
3. The avoidance of unnecessary fees and costs is part
of every attorney's ethical responsibility to the attorney's client. Alaska
Code of Prof.Resp. DR 2-106 (lawyers shall not enter agreements
for, charge or collect excessive fees). An attorney, however, is
not free to neglect a measure that will protect a
client from a clearly foreseeable risk of harm, merely because
there will be some additional cost to the client if
the measure is taken. W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 43,
at 280 (5th ed. 1984) (negligence requires a foreseeable risk
and unreasonable conduct).
There is evidence that the Does were concerned about the
cost of the adoption. There is also evidence that Hughes,
Thorsness informed the Does that "if the [Indian Child Welfare
Act] applied it would be necessary to comply with its
provisions because the adoption would either not be approved or
would be subject to future challenge." Robert L. Manley Aff.,
R. 12-16. Hughes, Thorsness did not, however, advise
its clients to secure the natural mother's consent in conformity
with the Act, despite the added cost.
Instead, it "recommended" that the Does "file an application with
the [superior] court, prior to the adoption, to determine whether
or not the [Act] applied." Id.
Because the Does believed, at that time, that the natural
mother "would never challenge
the adoption or revoke her consent," they "agreed to proceed
consistent with whatever ruling the court made on the issue."
important part of an attorney's duty to a client is the duty to advise
the client of action the client should take in a given set of circumstances.
Given the circumstances present in this case, we believe there
was only one prudent course of action open to the Does--namely,
to obtain the natural mother's consent to the adoption in full conformity
with the more onerous and costly consent requirements of the Indian Child
Welfare Act. By failing to advise its clients to take this
added step, despite the cost, Hughes, Thorsness also failed in its duty
to use the skill, prudence, and diligence required of an attorney practicing
within this jurisdiction. By doing so, Hughes, Thorsness breached
the duty of care owed to its clients, rendering the firm guilty of negligence,
or professional malpractice, as a matter of law.
Unlike the superior court, we are not impressed with Hughes,
Thorsness' argument that it cannot be found liable because it
was guilty of only an "error in judgment" concerning a
matter about which the law remained unsettled. Any uncertainty there
might have been about the applicability of the Indian Child
Welfare Act made Hughes, Thorsness' failure to obtain compliance with
the Act more,
rather than less, blameworthy.
The cost of compliance with the act would be by
all measures slight when compared to the potential cost of
not complying with the Act. The decision to ignore the
additional steps required for a "valid" consent was anything but
the act of a reasonably prudent lawyer.
For the reasons stated in this opinion, we hold that
Hughes, Thorsness is liable, as a matter of law, for
its failure to obtain the biological mother's consent to the
adoption of her child in conformity with the requirements of
the Indian Child Welfare Act. The judgment of the superior
court is reversed and remanded, with instructions that the court
enter judgment in the Does' *808
favor on the issue of Hughes, Thorsness' negligence. All remaining
issues in the case are left for determination by the
superior court after further proceedings.
REVERSED and REMANDED, with INSTRUCTIONS.
838 P.2d 804, 18 A.L.R.5th 1098