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Rules of Professional Conduct, Rule 3-310 which, in pertinent part provides: Avoiding the Representation of Adverse Interests. For purposes of this rule: disclosure means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client; informed written consent means the client's or former client's written agreement to the representation following written disclosure. A member shall not, without the informed written consent of each client: accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict. Moreover, advisement and waiver of a potential conflict of interest in typing a marital settlement agreement should not be equated with the admonitions and waivers required when a guilty plea is entered into a criminal charge. A fortiori, spouses in a marital proceeding can waive a potential conflict of interest in writing to settle property and support issues.
In July 1998, the parties, appellant Angela Egedi and respondent Lester Paul Egedi, entered into a friendly marital settlement agreement (MSA). They did not retain different attorneys but hired one attorney simply to formalize their agreement. The attorney discussed the potential conflict of interest with them and explained that he would serve only as the scrivener of the agreement, giving no legal advice to either party. The parties agreed on certain terms and the agreement was typed by the said attorney. Likewise, the parties agreed and signed a waiver of any conflict of interest. Thereafter, respondent refused to pay spousal support as agreed in the MSA, hence, appellant sought judicial enforcement. The trial court found that the agreement was voluntary and not obtained by misrepresentation, fraud, or overreaching. But then, it could still not be enforced because the court found that the conflict disclosures by the attorney were insufficient to enable the parties to give informed consent to the dual representation. As such, in this marital dissolution proceeding, the trial court entered a judgment denying the appellant wife's motion to enforce the parties' marital settlement agreement. Appellant sought review.
Was the trial court correct in holding that the attorney's disclosures were insufficient to enable the parties to give informed consent to dual representation?
The appellate court reversed holding that the attorney's addition of standard language to the parties' agreement did not create a dual representation. The court added that even if it did, the parties gave their informed consent within the requirements of Cal. R. Ct. 3-310. The court, thus, held that the parties could validly waive a potential conflict of interest in writing to settle their property and support issues. Moreover, the only issue was the enforceability of the agreement, and as the court explained, where a single attorney obtained an informed written waiver of the potential conflict of interest and acts only as a scrivener of the parties' marital settlement agreement (MSA), such agreement was enforceable. Therefore, the judgment was reversed and the matter was remanded for enforcement of the marital settlement agreement.