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Doe v. Hughes, Thorsness, Gantz, Powell & Brundin (10/9/92), P 11; 838,804d 833
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
JANE DOE and JOHN DOE, )
Appellants, ) File No. S-4543
v. ) Superior Court Case
) No. 3AN-90-1470 CI
HUGHES, THORSNESS, GANTZ, )
POWELL & BRUNDIN, ) O P I N I O N
Appellees. ) [No. 3891 - October 9, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: Sema Lederman, Hansen &
Lederman, Anchorage, for Appellants. Stephen
S. DeLisio, Jill E. Mickelsen, Staley,
DeLisio, Cook & Sherry, Inc., Anchorage, for
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
Jane and John Doe1 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.
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 require
ments of the Indian Child Welfare Act. 25 U.S.C. 1901-1963.
Specifically, the firm was concerned about the need to obtain
Mary Roe's consent to the adoption in conformity with the
Where 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 juris
diction and accompanied by the presiding
judge's certificate that the terms and conse
quences of the consent were fully explained
in detail and were fully understood by the
parent . . . .
25 U.S.C. 1913(a) (emphasis added).2
Hughes, Thorsness secured Roe's consent to the
adoption, in writing, as required by the Indian Child Welfare
Act. However, despite its concern about the Act's other require
ments, and its professed knowledge "that if the Act applied, the
[Does] would have to comply with it,"3 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 deter
mine whether the Act applied, and was content to rest on its oars
when the court concluded that it did not.
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
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
that 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 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.4
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 require
ments 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 mother's chal
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 observed:
Professional 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
Belland 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.5 The remaining issues in
the case, whatever they may be, are not before us in this appeal.
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, at
least, the adoption was, therefore, subject to the consent
requirements of the Indian Child Welfare Act. Under these circum
stances, 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
To 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 3.6 (Citation omitted).
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
An 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
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' 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.
1. In the interest of privacy, fictitious names are used in
2. 25 U.S.C. 1903 provides in part:
For purposes of this chapter . . . the
. . . .
(4) "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
. . . .
(9) "parent"means any biological parent
. . . of an Indian child . . . .
3. Brief of Appellee at 3.
4. 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.
5. 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 them here.
6. 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
7. Unlike the superior court, we are not impressed with
Hughes, Thorsness' argument that it cannot be found liable be
cause 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.