Klemm v. Superior Court

• Decision Date: 14 December 1977
• Parties: Dale KLEMM et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; COUNTY OF FRESNO, Real Party in Interest. Civ. 3453.
• Court: California Court of Appeals Court of Appeals

Page 509

142 Cal.Rptr. 509

75 Cal.App.3d 893

Dale KLEMM et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent COUNTY OF FRESNO, Real Party in Interest.

Civ. 3453.

Court of Appeal, Fifth District, California.

Dec. 14, 1977.

James Vance Henry and Catherine S. Bailey, Fresno, for petitioners

James Vance Henry, Fresno, as amicus curiae on behalf of petitioners.

Robert M. Wash, County Counsel, Max E. Robinson, Asst. County Counsel, and Charles O. Lamoree, Deputy County Counsel, Fresno, for respondent.

No appearance for real party in interest.

OPINION

GEO. A. BROWN, Presiding Justice.

The ultimate issue herein is to what extent one attorney may represent both husband and wife in a noncontested dissolution proceeding where the written consent of each to such representation has been filed with the court.

Dale Klemm (hereinafter "husband") and Gail Klemm (hereinafter "wife") were married and are the parents of two minor children. They separated after six years of marriage, and the wife filed a petition for dissolution of the marriage in propria persona. There was no community property, and neither party owned any substantial personal property. Both parties waived spousal support. The husband was a carpenter with part-time employment.

At the dissolution hearing Attorney Catherine Bailey appeared for the wife. It developed that Bailey is a friend of the husband and wife and because they could not afford an attorney she was acting without compensation. The attorney had consulted with both the husband and wife and had worked out an oral agreement whereby the custody of the minor children would be joint, that is, each would have the children for a period of two weeks out of each month, and the wife waived child support.

The trial judge granted an interlocutory decree and awarded joint custody in accord with the agreement. However, because the wife was receiving aid for dependent children payments from the county, he referred the matter of child support to the Family Support Division of the Fresno County District Attorney's office for investigation and report.

The subsequent report from the family support division recommended that the husband be ordered to pay $25 per month per child (total $50) child support and that this amount be paid to the county as reimbursement for past and present A.F.D.C. payments made and being made to the wife. Bailey, on behalf of the wife, filed a written objection to the recommendation that the husband be required to pay child support.

At the hearing on the report and issue of child support on April 25, 1977, Bailey announced she was appearing on behalf of the husband. She said the parties were "in agreement on this matter, so there is in reality no conflict between them." No written consents to joint representation were filed. On questioning by the court the wife evinced uncertainty as to her position in the litigation. The wife said, "She (Bailey) asked me to come here just as a witness, so I don't feel like I'm taking any action against Dale." The judge pointed out that she (the wife) was still a party. When first asked if she wanted Bailey to continue as her attorney she answered "No." Later she said she would consent to Bailey's being relieved as her counsel. She then said she didn't believe she could act as her own attorney but that she consented to Bailey's representing the husband. After this confusing and conflicting testimony and a request for permission to talk to Bailey about it, the judge ordered, over Bailey's objection, that he would not permit Bailey to appear for either the husband or the wife because of a present conflict of interest and ordered the matter continued for one week.

At the continued hearing on May 2, 1977, Bailey appeared by counsel, who filed written consents to joint representation signed by the husband and wife and requested that Bailey be allowed to appear for the husband and wife (who were present in court). The consents, which were identical in form, stated:

"I have been advised by my attorney that a potential conflict of interest exists by reason of her advising and representing my ex-spouse as well as myself. I feel this conflict is purely technical and I request Catherine Bailey to represent me."

The court denied the motion, ¹ and the husband and wife have petitioned this court for a writ of mandate to direct the trial court to permit such representation.

Rule 5-102 of the State Bar Rules of Professional Conduct states:

"(A) A member of the State Bar shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest, if any, in the subject matter of the employment. A member of the State Bar who accepts employment under this rule shall first obtain the client's written consent to such employment.

"(B) A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned." (3B West's Ann.Bus. & Prof.Code (1974 ed., 1977 cum.supp.) foll. § 6076 at p. 65.) ²

The California cases are generally consistent with Rule 5-102 permitting dual representation where there is a full disclosure and informed consent by all the parties, at least insofar as a representation pertains to agreements and negotiations prior to a trial or hearing. (Gregory v. Gregory (1949) 92 Cal.App.2d 343, 349, 206 P.2d 1122 (marital settlement agreements); Davidson v. Davidson (1949) 90 Cal.App.2d 809, 819, 204 P.2d 71; Lessing v. Gibbons (1935) 6 Cal.App.2d 598, 605-606, 45 P.2d 258 (court approved attorney acting for both studio and actress in concluding negotiations and drawing agreements. The court refers to the common practice of attorneys acting for both parties in drawing and dissolving partnership agreements, for grantors and grantees, sellers and buyers, lessors and lessees, and lenders and borrowers).) Where, however, a fully informed consent is not obtained, the duty of loyalty to different clients renders it impossible for an attorney, consistent with ethics and the fidelity owed to clients, to advise one client as to a disputed claim against the other. (Dettamanti v. Lompoc Union School Dist. (1956) 143 Cal.App.2d 715, 723, 300 P.2d 78.)

Though an informed consent be obtained, no case we have been able to find sanctions dual representation of conflicting interests if that representation is in conjunction with a trial or hearing where there is an actual, present, existing conflict and the discharge of duty to one client conflicts with the duty to another. (See Anderson v. Eaton (1930) 211 Cal. 113, 293 P. 788; Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 153-154, 249 P.2d 885; McClure v. Donovan (1947) 82 Cal.App.2d 664, 666, 186 P.2d 718.) As a matter of law a purported consent to dual representation of litigants with adverse interests at a contested hearing would be neither intelligent nor informed. Such representation would be per se inconsistent with the adversary position of an attorney in litigation, and common sense dictates that it would be unthinkable to permit an attorney to assume a position at a trial or hearing where he could not advocate the interests of one client without adversely injuring those of the other.

However, if the conflict is merely potential, there being no existing dispute or contest between the parties represented as to any point in litigation, then with full disclosure to and informed consent of both clients there may be dual representation at a hearing or trial. (Burum v. State Compensation Ins. Fund (1947) 30 Cal.2d 575, 184 P.2d 505; Lysick v. Walcom (1968) 258 Cal.App.2d 136, 146-147, 65 Cal.Rptr. 406; see Arden v. State Bar (1959) 52 Cal.2d 310, 341 P.2d 6.)

In our view the case at bench clearly falls within the latter category. The conflict of interest was strictly potential and not present. The parties had settled their differences by agreement. There was no point of difference to be litigated. The position of each inter se was totally consistent throughout the proceedings. The wife did not want child support from the husband, and the husband did not want to pay support for the children. The actual conflict that existed on the issue of support was between the county on the one hand, which argued that support should be ordered, and the husband and wife on the other who consistently maintained the husband should not be ordered to pay support.

While on the face of the matter it may appear foolhardy for the wife to waive child support, ³ other values could very well have been more important to her than such support such as maintaining a good relationship between the husband and the children and between the husband and herself despite the marital problems thus avoiding the backbiting, acrimony and ill will which the Family Relations Act of 1970 was, insofar as possible, designed to eliminate. It could well have been if the wife was forced to choose between A.F.D.C. payments to be reimbursed to the county by the husband and no A.F.D.C. payments she would have made the latter choice.

Of course, if the wife at some future date should change her mind and seek child support and if the husband should desire to avoid the payment of such support, Bailey would be disqualified from representing either in a contested hearing on the issue. (Rules of Prof. Conduct, rule 4-101; Goldstein v. Lees (1975) 46 Cal.App.3d 614, 120 Cal.Rptr. 253.) There would then exist an actual conflict between them, and an attorney's duty to maintain the confidence of each would preclude such representation. (Industrial Indem. Co. v. Great American Ins. Co. (1977) 73 Cal.App.3d 529, 140 Cal.Rptr. 806.)

The conclusion we arrive at is particularly congruent with dissolution proceedings under the Family Law Act of 1970, the purpose of which was to discard the concept of fault in dissolution of marriage actions (Civ.Code, §§ 4506, 4509), to minimize the adversary nature of such proceedings and to eliminate...