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AKUTAGAWA V. LAFLIN, PICK & HEER, P.A., 2005-NMCA-132, 138 N.M. 774, 126
P.3d 1138

TAZUE AKUTAGAWA, individually
and TAZUE AKUTAGAWA and
STANLEY YOSHIRO AKUTAGAWA,
as Co-Trustees of Trust B, the Decedent's
Trust, Created Under the Taro Akutagawa and
Tazue Akutagawa Revocable Trust,
Plaintiffs-Appellants,
v.
LAFLIN, PICK & HEER, P.A.,
Defendant-Appellant.

Docket No. 25,116
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-132, 138 N.M. 774, 126 P.3d 1138
September 29, 2005, Filed

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Geraldine E. Rivera, District Judge Released for publication November 29, 2005.
COUNSEL
Anthony Lawrence Romo, Romo & Associates, Albuquerque, NM, for Appellants
Carol Lisa Smith, Rikki L. Quintana, Bannerman & Williams, P.A., Albuquerque, NM, for Appellant

JUDGES
MICHAEL D. BUSTAMANTE, Chief Judge. WE CONCUR: A. JOSEPH ALARID, Judge, JAMES J. WECHSLER, Judge
AUTHOR: MICHAEL D. BUSTAMANTE

OPINION
BUSTAMANTE, Chief Judge.
{1} Plaintiffs filed a complaint for legal malpractice against the law firm of Laflin, Pick & Heer, P.A. (Law Firm or Defendant).  The district court granted Defendant's motion for summary judgment "based on lack of damages" and Plaintiffs appeal.  We affirm.

BACKGROUND
{2} Drawing from the record and the briefs, we assume the following facts are accurate. Tazue Akutagawa (wife) and her now deceased husband, Taro Akutagawa (husband) engaged John Laflin -- a principal in the Law Firm -- to provide estate planning services.  Laflin prepared a series of estate planning documents for the Akutagawas beginning in 1979, with various revisions and amendments, through 2002.  The Akutagawas requested an estate plan that would be consistent with Japanese traditions and customs.  Laflin prepared an A-B Trust for the Akutagawas, which consisted of a revocable survivors trust (Trust A) and an irrevocable decedents trust (Trust B). In accordance with Japanese custom, their eldest son, Stanley Yoshiro Akutagawa (son) was to be responsible to see to the needs of Taro or Tazue and his siblings, and to effect the wishes of his parents as to the distribution of property.  The Akutagawas contend that the primary purpose of the trust was to allow all property owned by them at the death of the first of them to be available to support the survivor of them for his or her lifetime.  Laflin contends that in preparing the trust, the Akutagawas expressed a desire to minimize future estate taxes.
{3} The A-B Trust arrangement set up for the Akutagawas by Laflin is apparently a very common estate planning technique used in estates of married couples who want to provide for the surviving spouse and at the same time minimize estate taxes.  The defense expert, Kenneth C. Leach (Leach), asserted by affidavit that Laflin and the Law Firm complied with the standard of care required of estate planning attorneys by including critical language in the trust restricting the unconditional access of the surviving spouse to the Trust B assets to the extent required by applicable Internal Revenue Code and Internal Revenue Service regulations, so as to minimize the potential for future estate taxes. The governing A-B Trust agreement required that assets in the trust be divided between Trust A and Trust B so that each trust had a net community asset value equal to one-half the total value of the trust estate.  Under the terms of the estate plan, half of the Akutagawas' property becomes property of Trust B after the death of the first spouse. Language in versions of the trust agreement prior to 1998 provided that distributions under Trust B would be under the control of the son and surviving spouse. The parties stipulated that there are no allegations or claims for legal malpractice for any legal services or advice provided by Laflin prior to the preparation and signing of the 1998 trust amendment.
{4} In preparing revisions to the trust documents in 1998 and subsequently in 2002, a critical paragraph governing distributions from Trust B during the lifetime of the surviving spouse -

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