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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. L.D.G., Inc. v. Robinson (12/14/2012) sp-6734

L.D.G., Inc. v. Robinson (12/14/2012) sp-6734

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  


L.D.G., INC. and ESTATE OF                         ) 

LARRY GJOVIG,                                      ) 

                                                   )   Supreme Court No. S-14427 

                        Appellants,                ) 

                                                   )   Superior Court No. 3AN-10-12149 CI 

        v.                                         ) 

                                                   )   O P I N I O N 

ARTHUR S. ROBINSON,                                ) 

                                                   )   No. 6734 - December 14, 2012 

                        Appellee.                  ) 


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Eric A. Aarseth, Judge. 

                Appearances:      Mark A. Sandberg, Law Office of Mark A. 

                Sandberg,   and   Peter   A.   Sandberg,   Wuestenfeld   &   Corey, 

                LLC, Anchorage, for Appellants.  Laura L. Farley, Farley & 

                Graves, P.C., Anchorage, for Appellee. 

                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers,    Justices. 

                WINFREE, Justice. 


                A bar served a man alcohol while he was visibly intoxicated, and the man 

murdered   a   woman   later   in    the   evening.  The   lawyer   representing      the   bar  in  the 

subsequent   dram      shop   action   did  not  attempt   to  add  the  murderer     as  a  party  for 

apportionment of fault.       Following entry of a large judgment against the bar, the bar 

----------------------- Page 2-----------------------

brought a legal malpractice suit against its attorney.  The attorney moved to dismiss for 

failure to state a claim upon which relief could be granted, arguing that where case law 

is unsettled, as a matter of law an attorney cannot be held liable for an error in judgment. 

The superior court granted the motion and the bar appeals.  Because the existence of 

unsettled law does not excuse an attorney from fulfilling a duty of care, we reverse and 

remand for further proceedings. 


        A.      Facts 

                Larry Gjovig was the sole shareholder of L.D.G., Inc., a corporation which 

owned and operated a bar.  One night in 1998 the bar served R.V. Freeman alcohol; later 

that night Freeman shot and killed Tracy Eason.1          Freeman subsequently was convicted 

of first-degree murder.2 

                In 2000 the personal representative of Eason's estate filed a wrongful death 

suit against L.D.G. and Gjovig (collectively L.D.G.), alleging L.D.G. violated Alaska's 

dram shop act when it served alcoholic beverages to Freeman while visibly intoxicated, 

proximately causing Eason's death.3         The estate did not sue Freeman.4 

                L.D.G. retained Arthur S. Robinson to defend the suit.             Robinson did not 

seek to join Freeman to the action or assert a third-party claim against him for allocation 

        1       L.D.G., Inc. v. Brown , 211 P.3d 1110, 1115 (Alaska 2009).

      Freeman v. State , No.   A-7658, 2002 WL 460222, at *1 (Alaska App., 

Mar. 27, 2002). 

        3       L.D.G. , 211 P.3d at 1116.

        4       Id.

                                                 -2-                                            6734

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of fault.5  The case proceeded to trial and was submitted to a jury.           The jury found "an 

employee of the [bar] with criminal negligence allow[ed] R.V. Freeman to consume an 

alcoholic beverage in the bar when he was a drunken person."6               The jury also found it 

was "more likely true than not true that, if R.V. Freeman had not been intoxicated, he 

would not have killed Tracy Eason."7          Despite these findings, the jury declined to find 

that "the intoxication of R.V. Freeman [was] so important in bringing about the death of 

Tracy Eason that a reasonable person would regard it as a cause and attach responsibility 

to it," and therefore did not reach the question of damages.8 

                Following       the   jury's    verdict,   the    estate   moved      for   judgment 

notwithstanding the verdict and a damages trial.  The superior court granted the motion, 

finding that "fair-minded jurors could not have concluded that the intoxication of the 

murderer,     who    they  found    would    not  have   killed  Tracy   Eason    but  for  that  very 

intoxication, was not a substantial factor in this wrongful death."9               The court noted 

difficulty impaneling a jury willing to find a liquor licensee liable, stating that "firmly 

held   concepts   of   personal   responsibility   of   the   consuming   patron,   coupled   with   a 

perceived disparity in fault between a liquor provider and a murderer, troubled many 

        5       See   AS   09.17.080   (providing   for   apportionment   of   damages   in   actions 

involving fault of more than one person); see also Alaska R. Civ. P. 14 ("At any time 

after commencement of the action a defending party, as a third-party plaintiff, may cause 

a summons and complaint to be served upon a person not a party to the action who is or 

may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the 

third-party plaintiff."). 

        6       L.D.G. , 211 P.3d at 1116 (alteration in original). 

        7       Id. 

        8       Id. (alteration in original). 

        9       Id. 

                                                 -3-                                            6734

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potential jurors."   The court also noted the problem "was exacerbated by a legal error of 

the defense" in failing to include the murderer as a party for allocation of fault.10 

                The superior court's decision effectively attributed 100% of the fault to 

L.D.G.    After a trial on damages, the superior court entered judgment of $945,911.95 

against L.D.G. We affirmed the judgment after L.D.G.'s appeal.11  Robinson represented 

L.D.G. at all stages of the lawsuit and appeal. 

        B.      Proceedings 

                L.D.G. sued Robinson, alleging that Robinson's representation fell below 

the standard of care for an attorney practicing in Alaska when he did not attempt to add 

Freeman to the underlying action for allocation of fault.  Robinson moved to dismiss for 

failure to state a claim.12    Robinson argued that following Loeb v. Rasmussen ,13 Alaska's 

dram   shop   case   law   was   unsettled   whether   alcohol   sellers   could   apportion   fault   to 

consumers, and that an attorney cannot be liable for an error in judgment regarding an 

unsettled proposition of law. 

                L.D.G. opposed the motion, contending that this argument was rejected  in 

Doe v. Hughes, Thorsness, Gantz, Powell & Brundin .14               Robinson replied, in a manner 

        10      See AS 09.17.080(a)(2) (providing fault may not be allocated to person if 

"parties had a sufficient opportunity to join that person in the action but chose not to"). 

        11      L.D.G. , 211 P.3d at 1136. 

        12      See Alaska R. Civ. P. 12(b)(6). 

        13      822 P.2d 914, 919-20 & n.15 (Alaska 1991) (holding in dram shop action 

brought by minor's estate that licensee could not assert comparative fault of minor who 

purchased alcohol, but in light of recent enactment of pure several liability "reserv[ing] 

for future consideration all issues related to multiple defendants"). 

        14      838 P.2d 804, 807 n.7 (Alaska 1992) (noting law firm could be liable for 


                                                  -4-                                             6734

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somewhat contrary to his argument about unsettled law, that at the time of the underlying 

litigation Alaska's dram shop act "was an exceptional statute, intended to place the entire 

responsibility for the harm which occurred upon the liquor licensee," and that Robinson 

followed this existing law in L.D.G.'s representation.              Robinson asserted that Doe was 

inapplicable because "the Doe attorneys knowingly failed to comply with existing law," 

but   he   again   argued   that   other   jurisdictions   provide   immunity   for   judgment   errors 

regarding unsettled propositions of law. 

                 At oral argument on the motion, Robinson argued that his duty was to "act 

in a manner consistent with the existing law," and because he did so, as a matter of law 

he was not liable for malpractice.  L.D.G. argued that Doe requires an attorney to "weigh 

the   benefit   and   the   possible   harms   and   see   which   course"   to   take,   and   that   it   was 

inappropriate to dismiss L.D.G.'s claim without granting the parties an opportunity to 

present     expert   evidence     on   the  standard    of   care  or   an  opportunity      to  determine 

Robinson's considerations (if any) in making the decision not to add Freeman. 

                 The superior court granted Robinson's motion to dismiss.  The court noted 

that the applicability of several liability to the dram shop statute was unsettled at the time 

of the underlying trial and was not resolved until ten years later in Sowinski v. Walker .15 

After noting that Sowinski did not "represent the standard of care as it existed" at the time 

of Robinson's representation, the superior court stated "[t]his issue is particularly suited 

for decision in a rule of law order as the court does not have to be concerned with a jury 

        14       (...continued) 

malpractice      in  spite   of   argument    that   its   action  was   only  an  "error   in  judgment" 

concerning unsettled law). 

        15       198 P.3d 1134, 1140 (Alaska 2008) (holding that adoption of pure several 

liability supercedes Loeb and allows licensee to assert comparative fault of minor in 

dram shop action between minor and licensee). 

                                                    -5-                                               6734

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using hindsight to analyze [Robinson's] decision-making."                 The court concluded that 

"[a]t the time of the trial, Loeb  was the effective law and Mr. Robinson did not, as a 

matter of law, breach his duty of care to his clients in applying that law to their case." 

The court mentioned but did not apply Doe . 

                L.D.G. moved for reconsideration, arguing that the court should reconsider 

its  decision    in  light  of  Doe 's   holding    and  Loeb 's   express    reservation    for  future 

consideration      all  issues   related   to  multiple    defendants     and   the  several    liability 

framework.16     Robinson opposed, arguing that Loeb broadly precluded licensees from 

allocating fault to the consumer.17 

                The superior court denied L.D.G.'s reconsideration motion. It clarified that 

it did "not know whether [Robinson] vigorously researched case law in preparation for 

the   underlying   case"   and   noted   that   "[a]t   the   time,   'the   dram   shop   statute   was   an 

exceptional statute where all fault was attributable to the alcohol seller.' "              The court 

explained that attorneys are not required to anticipate future supreme court rulings and 

concluded that "[i]t does not matter whether [Robinson] failed to do his research or 

whether he 'carefully considered and researched the issue' at the time of the underlying 

case, [as] the law was unsettled."       Again the court did not apply Doe . 

                L.D.G. appeals the dismissal of the action. 


                "We review de novo an order dismissing a complaint . . . for failure to state 

a claim upon which relief can be granted."18           When reviewing such an order, we deem 

        16      See Doe, 838 P.2d at 807 n.7; Loeb , 822 P.2d at 920 n.15. 

        17      Cf. Loeb, 822 P.2d at 919-20. 

        18      Larson v. State , 254 P.3d 1073, 1076 (Alaska 2011) (quoting Pepper v. 


                                                  -6-                                             6734

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all facts alleged in the complaint true and provable.19     To survive such a motion, "it is 

enough that the complaint set forth allegations of fact consistent with and appropriate to 

some enforceable cause of action."20  We will affirm a superior court's dismissal "only 

if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle 

[the plaintiff] to relief."21 We note that motions to dismiss for failure to state a claim are 

generally disfavored and should be rarely granted.22 


               Alaska Civil Rule 12(b)(6) permits a court to dismiss a complaint for failing 

to state a claim upon which relief can be granted. To establish its legal malpractice claim 

against Robinson, L.D.G. was required to allege facts supporting four basic elements: 

(1) Robinson had a duty "to use such skill, prudence, and diligence as other members of 

the profession commonly possess and exercise"; (2) he breached that duty; (3) the breach 

proximately caused L.D.G.'s injury; and (4) "actual loss or damage resulted from the 


       18      (...continued) 

Routh Crabtree, APC , 219 P.3d 1017, 1020 (Alaska 2009)). 

       19      Id. (quoting Pepper , 219 P.3d at 1020). 

       20      Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999) (quoting Kollodge v. 

State, 757 P.2d 1024, 1025-26 (Alaska 1988)). 

       21      Larson , 254 P.3d at 1076-77 (quoting Pepper , 219 P.3d at 1020) (alteration 

in original). 

       22      Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 286 (Alaska 2008) (citing 

Kollodge , 757 P.2d at 1026). 

       23      See Stewart v. Elliott, 239 P.3d 1236, 1240 (Alaska 2010) (quoting Shaw 

v. State, Dep't of Admin., Pub. Defender Agency, 816 P.2d 1358, 1361 n.5 (Alaska 


                                              -7-                                         6734

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                The parties dispute whether L.D.G. asserted facts to support the second 

element.    But L.D.G. alleged that Robinson's failure to add Freeman as a party to the 

lawsuit fell below the standard of care for an attorney practicing in Alaska.  It was error 

for the superior court to conclude that this assertion, which implicates both the contours 

of Robinson's duty of care and the element of breach, was legally insufficient to entitle 

L.D.G. to relief. 

                We agree that the specific question facing Robinson - whether L.D.G. 

could    make     Freeman     a  party  for  allocation    of  fault  -    was   unsettled24   when    he 

representated L.D.G. in the superior court.           At that time, AS 04.21.020(a), governing 

liability in dram shop actions, provided in relevant part: 

                A person who provides alcoholic beverages to another person 

                may not be held civilly liable for injuries resulting from the 

                intoxication of that person unless the person who provides 

                the   alcoholic   beverages   holds      a  license   .   .   .   and   (1)   the 

                alcoholic beverages are provided to a person under the age of 

                21 years . . . or (2) the alcoholic beverages are provided to a 

                drunken person . . . .[25] 

Also    at  that  time,   our  only   decision    analyzing    fault  allocation    in  relation  to  AS 

04.21.020(a) was Loeb v. Rasmussen .26 

                In Loeb a store negligently sold liquor to a minor, leading to an automobile 

accident; one year later the minor committed suicide.27             The personal representative of 

        24      "Unsettled" is defined as "not decided or determined . . . characterized by 

uncertainty,     irregularity,   or  instability."   WEBSTER 'S      THIRD    NEW    INTERNATIONAL 

DICTIONARY 2510 (2002). 

        25      Former AS 04.21.020(a)(1)-(2) (2000). 

        26      822 P.2d 914 (Alaska 1991). 

        27      Id. at 916. 

                                                   -8-                                             6734

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the   minor's   estate   brought   an   action   against   the   store.28   That   suit   prompted   us   to 

consider      the  relationship     between     Alaska's     then-recent     adoption     of   comparative 

negligence29 and the dram shop act.30          We rejected the store's argument that our common 

law adoption and then the legislature's statutory adoption of comparative negligence 

undermined the rationale for the rule that a violator of an "exceptional statute" - a 

statute   designed   to   protect   a   special   class   -   may   not   plead   a   protected   plaintiff's 

contributory fault.31     We explained that the system of comparative negligence was "not 

at all inconsistent with our past decisions" because "the plaintiff/consumer's contributory 

fault is not chargeable to the claimant in these circumstances, in an action against the 

violator."32    While recognizing that there was "a considerable split of authority in this 

area of the law," we held that the legislature's adoption of comparative negligence did 

not change the established rule because this "best comport[ed] with existing Alaska law 

and sound public policy."33 

                 In   reaching   our   conclusion,   we   focused   on   the   public   policy   concerns 

underlying the dram shop act and the statutes requiring licensees to verify a purchaser's 


        28       Id. 

        29       See Kaatz v. State, 540 P.2d 1037, 1049 (Alaska 1975) (adopting common 

law    comparative       negligence);    see    also  AS    09.17.060;      ch.  139,      1,  SLA      1986 

("[C]ontributory fault chargeable to the claimant diminishes proportionately the amount 

awarded       as  compensatory        damages     for   the   injury   attributable    to  the   claimant's 

contributory fault, but does not bar recovery."). 

        30       Loeb , 822 P.2d at 918. 

        31       Id . 

        32       Id. (emphasis in original). 

        33       Id . at 919. 

                                                     -9-                                               6734

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                 The   legislature   has   passed   many   laws   designed   to   protect 

                 minors   from   the   pernicious   effects   of   alcohol.   Such   laws, 

                 particularly those making it unlawful to sell liquor to a minor, 

                 reflect   society's   belief   that   children   are   not   competent   to 

                 assess in any meaningful way the risks involved in the use of 

                 alcohol.     [The     store]   was    able   to  exploit    this  lack   of 

                 competence[] when it sold liquor unlawfully to [the minor]. 

                 However, we can think of no legitimate reason to allow [the 

                 store]   to   exploit   it   further[]   by   having   its   liability   to   the 

                 plaintiff reduced because [the minor] failed to exercise the 

                 same degree of care for her own safety reasonably expected 

                 of one more able to assess the risks[] when she purchased and 

                 used    the  defendant's      product.   [The    store's]   argument     is 

                 particularly unpersuasive in light of the fact that it could have 

                 avoided all liability merely by securing, in good faith, proof 

                 that [the minor] was of lawful age before selling her liquor.[34] 

We ultimately held that "a licensee who violates AS 04.21.050[35] is not entitled to assert 

the comparative fault of the minor/consumer[] in an action for damages resulting from 

the unlawful sale of intoxicating liquor."36 

                 Importantly, we footnoted our holding with an express caveat: 

                 Because this case does not involve multiple defendants, we 

                 need not decide how the recent Tort Reform Act [amended by 

                 initiative to provide pure several liability37 ] affects this issue. 

        34       Id. (citations and emphasis omitted). 

        35       AS 04.21.050 requires proof of age whenever the licensee or employee 

"questions or has reason to question whether [a person] has attained the age of 21 years," 

and can be the basis of liability under the dram shop statute, AS 04.21.020. 

        36       Loeb , 822 P.2d at 919-20. 

        37       In 1986 the legislature passed the Tort Reform Act, codifying a system of 

pure comparative negligence but retaining joint and several liability.  Ch. 139,  1-11, 

SLA 1986.  A ballot initiative passed two years later replaced joint and several liability 


                                                    -10-                                              6734

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                Multiple defendants might complicate a case when an injured 

                third party brings action against both the minor and the liquor 

                licensee,    or  when     more    than   one   liquor   licensee    has 

                unlawfully provided the minor with liquor.            We reserve for 

                future     consideration     all   issues    related     to   multiple 


                Robinson argues that Loeb was the governing law at the time he represented 

L.D.G.      But   Loeb     did  not   clearly   establish   the  law    applicable    to  Robinson's 

representation for two reasons.        First, in Loeb we reasoned that the public policy of 

protecting minors prevented the licensee from asserting the minor's fault.39               While we 

mentioned a similar policy of protecting obviously intoxicated persons,40 our holding 

directly pertained only to minors.41     We held that "a licensee who violates AS 04.21.050" 

- the statute requiring licensees to verify purchasers' age - "is not entitled to assert the 

comparative      fault  of  the  minor/consumer."42        Second,     in Loeb    we   analyzed     the 

        37      (...continued) 

with pure several liability.     See generally Sowinski v. Walker, 198 P.3d 1134, 1149-50 

(Alaska 2008); Smith v. Ingersoll-Rand Co., 14 P.3d 990, 994 (Alaska 2000). 

        38      Loeb 822 P.2d at 920 n.15 (emphasis added) (citations omitted).                Years 

after the trial in the present case, we held in Sowinski v. Walker that the legislature's 

adoption of pure several liability in AS 09.17.080 superseded our determination in Loeb 

that the violator of AS 04.21.020 could not reduce its liability by the fault of the minor- 

plaintiff.  Sowinski, 198 P.3d at 1155-56 (Alaska 2008). 

        39      Loeb , 822 P.2d at 918-19. 

        40      See id. at 918. 

        41      Id. at 919. 

        42      Id. 

                                                 -11-                                           6734

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application of a comparative negligence system retaining joint and several liability.43  But 

when Robinson representated L.D.G. the law applied pure several liability, raising issues 

which, in the footnote quoted above, we expressly reserved for future consideration.44 

                Robinson argues that in this footnote we referred only to cases where a 

plaintiff, not the defendant-licensee, might assert a claim against the consumer, rather 

than where the defendant-licensee might bring a third-party action against the consumer 

or join the consumer as a defendant for fault allocation. Although we initially referenced 

an "action against both the minor and the liquor licensee" rather than making a more 

general statement (so as to include those times when the defendant adds the consumer), 

we   noted   that   we   "reserve[d]   for   future   consideration  all   issues   related   to   multiple 

defendants."45     In this way, we stated that Loeb was not necessarily applicable in future 

suits involving multiple defendants under the new statutory several liability framework, 

regardless of who added the additional defendant(s).               Thus at the time of Robinson's 

representation we had left unsettled the issue of whether the defendant-licensee could 

bring in a minor or intoxicated person for fault allocation purposes. 

                We therefore must consider an attorney's duty when the law is unsettled on 

a material issue necessitating a strategic decision by the attorney or the client.   We 

addressed a similar situation in Doe v. Hughes, Thorsness, Gantz, Powell & Brundin.46 

There, a husband and wife hired a law firm to arrange their adoption of their biological 

        43      See id. at 918, 920 n.15. 

        44      Id. 

        45      Id. (emphasis added). 

        46      838 P.2d 804 (Alaska 1992). 

                                                  -12-                                             6734

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child birthed by a surrogate mother.47  Because the husband was part Chickasaw Indian, 

the firm became concerned about the impact of the Indian Child Welfare Act (ICWA) 

on the adoption - specifically, ICWA required that the adoptive parents obtain the 

surrogate mother's consent.48          The firm obtained the surrogate's consent, but failed to 

take additional steps required to make the consent valid under ICWA because the firm 

was unsure whether ICWA actually applied to the case.49  The firm instead recommended 

that the Does allow the superior court to determine whether ICWA applied, and "was 

content to rest on its oars when the court concluded that it did not."50              The superior court 

accepted the surrogate's consent to the adoption in the form presented and entered a final 

decree   of   adoption   terminating   the   parental   relationship   between   the   child   and   the 



                 The   surrogate   later   moved   to   vacate   the   decree   on   the   ground   that   her 

consent   was   invalid   because   it   was   not   obtained   in   conformity   with   ICWA.52        The 

adoptive parents obtained new representation and successfully defended the adoption, 

        47       Id. at 805. 

        48       Id. (citing 25 U.S.C.  1913(a)). 

        49       Id.  Under ICWA, where a parent gives consent to the termination of his or 

her parental rights, the consent is valid only if it is "executed in writing and recorded 

before   a   judge   of   a   court   of   competent   jurisdiction,"   and   is   "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). 

        50       Doe , 838 P.2d at 805. 

        51       Id. 

        52       Id. 

                                                    -13-                                               6734

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but    incurred    significant    costs.53   The     adoptive    parents    sued   the   original   firm   for 

malpractice, alleging the firm was negligent in failing to comply with ICWA.54                           The 

superior   court   dismissed   the   action   on   summary   judgment,   finding   that   the   firm's 

conduct was not actionable under the circumstances: 

                 the issue in the case was whether [the firm] was liable to the 

                 [adoptive   parents]   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 


                 We reversed, noting that because the adoption was potentially subject to 

ICWA's consent requirements, "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."56                    We recognized 

that the firm chose not to pursue validating the consent because of the added cost to the 

adoptive parents, and that the firm had informed the parents that if ICWA applied it 

would   be   necessary   to   comply   to   prevent   a   future   challenge.57      The   firm   "did   not, 

however, advise its clients to secure the natural mother's consent in conformity with the 

Act, despite the added cost."58 

                 We explained that an attorney's obligations involve the "duty to advise the 

         53      Id. at 805-06.

         54      Id. at 806.

     Id. (internal alteration marks omitted). 

         56      Id. at 806-07. 

         57      Id. at 807. 

         58      Id. (emphasis omitted). 

                                                     -14-                                               6734

----------------------- Page 15-----------------------

client of action the client should take in a given set of circumstances."59          Because the firm 

failed   to   advise   the   parents   to   pursue   the   "only   one   prudent   course   of   action"   - 

obtaining the surrogate's valid consent - we concluded the firm had "failed in its duty 

to use the skill, prudence, and diligence required of an attorney practicing within this 

jurisdiction,"   breached   the   duty   of   care,   and   had   therefore   committed   professional 

malpractice as a matter of law.60 

                We specifically addressed the superior court's conclusion that the firm 

could not be liable for "only an 'error in judgment' concerning a matter about which the 

law remained unsettled."61        We were "not impressed" with that position, noting that: 

                 [a]ny    uncertainty      there   might     have    been    about     the 

                applicability of [ICWA] made [the firm's] failure to obtain 

                compliance        with     the   Act   more,      rather     than    less, 

                blameworthy.        The cost of compliance with the [A]ct 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.[62] 

In this way, we refused to grant immunity to lawyers committing an error in judgment 

with regard to unsettled law. 

                Robinson argues that Doe is distinguishable because "[t]he Doe attorneys 

failed to act in conformity with a governing federal statute[, whereas here] Robinson's 

conduct was consistent with existing law."  But Doe demonstrates that where the law is 

unsettled - as it was here - there is at least a viable claim that the standard of care 

        59      Id. (emphasis omitted). 

        60      Id. (emphasis omitted). 

        61      Id. at 807 n.7. 

        62      Id. (emphasis in original). 

                                                  -15-                                             6734

----------------------- Page 16-----------------------

requires the attorney to advise a client to follow the reasonably prudent course of action 

in light of the uncertainty,63 such that Rule 12(b)(6) dismissal is inappropriate.64 

                 This standard of care was exemplified by the defense counsel and superior 

court   in  H   &   J   Corp.   v.   Murfitt .65 In  Murfitt   a   drunk   driver   to   whom   a   bar   had 

negligently   served   alcohol   caused   a   car   accident,   and   the   victims   brought   an   action 

against the bar under the dram shop act.66            Although the victims did not add the driver 

as a defendant in the suit, the bar sought to add the driver for fault allocation by filing a 

third-party complaint against him.67          The victims moved to dismiss the driver to prevent 

the bar from apportioning fault to the driver, and the superior court granted the motion.68 

Despite that ruling, the superior court instructed the parties to present their allocation 

evidence to the jury.69      The court explained that while it agreed with the victims, it was 

important to preserve a complete record and avoid retrial in case we concluded on appeal 

        63       See Doe , 838 P.2d at 807 n.7. 

        64       Cf. Tush v. Pharr, 68 P.3d   1239, 1246-47 (Alaska 2003) (providing in 

attorney   malpractice   suit   that   where   reasonable   minds   could   differ   as   to   attorney's 

standard of care, summary judgment is not appropriate); Linck v. Barokas & Martin , 667 

P.2d 171, 173-74 (Alaska 1983) (reversing a Rule 12(b)(6) dismissal where plaintiff 

alleged   attorney   failed   to   advise   plaintiff   of her   right to   disclaim   an   interest in   her 

husband's estate to avoid tax liability for gifts to her children). 

        65       Mem. Op. & J. No. 1351, 2009 WL 3681660 (Alaska, Nov. 4, 2009). 

        66       Id. at *1. 

        67       Id. at *2. 

        68       Id. 

        69       Id. 

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that the order was in error.70 

                The bar appealed the court's determination that the dram shop act precluded 

alcohol   sellers   from   apportioning   fault.71   While   the   case   was   pending,   we   decided 

Sowinski v. Walker, holding that the legislature's adoption of pure several liability in AS 

09.17.080 required a liquor licensee be liable only for its own negligence as allocated to 

it by the jury.72 We issued a memorandum opinion and judgment in Murfitt reversing the 

superior court's order and providing the bar was liable only for damages corresponding 

to its percentage of fault as allocated by the finder of fact.73         Murfitt demonstrates that 

because of uncertainty in the law, a prudent defense lawyer would have considered 

attempting   to   add   Freeman   as   a   defendant   for   fault   allocation. We   therefore   reject 

Robinson's contention that as a matter of law his conduct could not amount to legal 



                For the reasons stated, we REVERSE the dismissal order and REMAND 

for proceedings consistent with this decision. 

        70      Id. 

        71      Id. at *3. 

        72      198 P.3d 1134, 1151-56 (Alaska 2008). 

        73      Murfitt , 2009 WL 3681660, at *5. 

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