Klemm v. Superior Court
1977 Cal. App. LEXIS 2067, 75 Cal. App. 3d 893, 142 Cal. Rptr. 509 (1977)
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Rule of Law:
An attorney may represent both parties in a non-contested legal proceeding where their interests are only potentially, not actually, in conflict, provided the attorney obtains the knowing and informed written consent of both parties after a full disclosure of all relevant facts and potential conflicts.
Facts:
- Dale Klemm and Gail Klemm separated after six years of marriage and were parents to two minor children.
- They had no community property, no substantial personal property, and both agreed to waive spousal support.
- Attorney Catherine Bailey, a friend of the couple, agreed to represent them without compensation.
- Bailey consulted with both Dale and Gail, who reached an oral agreement for joint custody of their children, with Gail waiving child support.
- At the time, Gail Klemm was receiving Aid for Dependent Children (A.F.D.C.) payments from the county.
- A county family support division report recommended that Dale Klemm be ordered to pay child support to the county as reimbursement for the A.F.D.C. payments.
- Both Dale and Gail Klemm disagreed with the county's recommendation and remained in agreement that Dale should not have to pay child support.
Procedural Posture:
- Gail Klemm filed a petition for dissolution of marriage in propria persona in the trial court.
- At an initial hearing, the trial judge granted an interlocutory decree but referred the matter of child support to the county's Family Support Division.
- The Family Support Division filed a report recommending the husband pay child support; Attorney Bailey, on behalf of the wife, filed an objection.
- At a subsequent hearing, Bailey announced she was appearing for the husband. The trial judge found a conflict of interest and ordered that Bailey could not represent either party.
- At a continued hearing, Bailey's counsel filed written consents for joint representation signed by both Dale and Gail Klemm.
- The trial court denied the motion to allow Bailey to represent both parties, finding an actual conflict of interest.
- The husband and wife then petitioned the Court of Appeal for a writ of mandate to direct the trial court to permit the joint representation.
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Issue:
May an attorney represent both a husband and wife in a dissolution hearing where their interests are only potentially conflicting, and not in actual conflict, provided both parties give knowing and informed written consent?
Opinions:
Majority - Brown, G. A.
Yes. An attorney may represent both parties at a hearing if the conflict of interest is merely potential, provided there is full disclosure and the clients' informed consent. The court distinguished between an actual, present conflict and a potential one. Dual representation is per se improper in a contested hearing where an actual conflict exists, as an attorney cannot advocate for one client without adversely affecting the other, and any consent would not be informed. However, where the conflict is merely potential—meaning there is no existing dispute between the parties themselves on any point in litigation—dual representation is permissible with the clients' knowing and informed written consent. Here, the court found no conflict between Dale and Gail Klemm; both were in complete agreement that the husband should not pay child support. The actual conflict was between the Klemms, as a united front, and the county, which was seeking reimbursement for public assistance payments.
Analysis:
This case clarifies the critical distinction between actual and potential conflicts of interest in the context of dual representation, particularly in family law. It establishes that client consent can waive a potential conflict, allowing a single attorney to represent parties in an uncontested dissolution, but cannot cure an actual conflict in a contested proceeding. The decision places a duty on trial courts to inquire into the validity of written consents rather than summarily disqualifying counsel based on a perceived conflict. This reinforces the goals of California's Family Law Act to reduce animosity and litigation costs in dissolutions where parties are in agreement.
