They hired Moxley's attorney to execute the maneuver. Because of their joint purpose, it does not appear that the interests of the two plaintiffs conflicted in the manner contemplated by the court in the case of Hammett v. McIntyre, 114 Cal.App.2d 148 [ 249 P.2d 885], which has been cited by appellant in support of his contention. In that case one firm of attorneys, at their own instance, suggested to joint defendants that the firm arrange to represent both defendants.
One of the reasons for care in adopting a court opinion verbatim as a jury instruction is that its abstract or argumentative nature may have a confusing effect upon the jury. In the Anderson case, and in Hammett v. McIntyre, 114 Cal.App.2d 148, 155 [ 249 P.2d 885] (which uses substantially the same language), the court was speaking of the attorney's obligation with respect to the conduct of a single piece of litigation. The attorney's services in the case at bar did not involve litigation and the statement that "an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client's interests" would be accepted by the jurors as applicable to the facts at bar and would thereby direct their attention to a nonexistent issue, for there was no controversy over the amount of time or energy which Mr. Light had devoted to his client's affairs — it was a question of whether he had breached his obligation of loyalty by assuming inconsistent duties.
"Where an insurer's attorney has reason to believe that the discharge of his duties to his client, the insured, will conflict with his duties to his employer, the insurer, it becomes incumbent upon him to terminate his relationship with the client. Reynolds v. Maramorosch, 208 Misc. 626, 144 N.Y.S.2d 900 (1955); Helm v. Inter Insurance Exchange, 354 Mo. 935, 192 S.W.2d 417 (1946); Hammett v.McIntyre, 114 Cal.App.2d 148, 249 P.2d 885 (1952). It was the duty of plaintiff's attorneys upon learning of the possible conflict of interests between plaintiff and defendant.
We are aware that in some cases courts reviewing final judgments have considered whether the denial of disqualification or presence of a conflict rendered the proceedings fundamentally unfair. (See, e.g., Weidekind, supra, 74 Cal. at pp. 388-389 [appellant objected at trial to his former attorney in the same case representing the other side; reversed]; Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 157-158 [ 249 P.2d 885] [conflict meant attorney effectively abandoned one client in favor of another, rendering the trial unfair].) Some of those cases were mentioned and rejected in Meehan and others do not address the question resolved therein, therefore they do not appear to be good authority even as to denied motions.
(20a) The circumstances under which Chabafy purported to bind the partnership to guaranty his personal obligation and then hired counsel to represent both himself and the partnership clearly gave rise to a conflict of interest between Chabafy and Juniper as to Chabafy's authority. (See Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 157 [ 249 P.2d 885].) (21) (See fn. 13.), (20b) Dual representation under such circumstances resulted in the denial of a fair trial.
(12) The duty to terminate the attorney-client relationship may arise whenever counsel for a party to an action has reason to believe that discharge of his duties to that party will conflict with discharge of his duties to a third party. ( Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 153 [ 249 P.2d 885].) The same duty arises where an attorney is faced with the situation of representing inconsistent claims of two parties because he must be capable of devoting his entire energies in his client's interests and on his client's behalf.
The duty to terminate the attorney-client relationship may arise whenever counsel for a party to an action has reason to believe that discharge of his duties to that party will conflict with discharge of his duties to a third party. (Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 153, 249 P.2d 885.) The same duty arises where an attorney is faced with the situation of representing inconsistent claims of two parties because he must be capable of devoting his entire energies in his client's interests and on his client's behalf.
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].) (1) 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.
Absent disclosure and consent, the attorney should neither represent a claim inconsistent with his client's interest nor represent two clients with conflicting interests. ( Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 155 [ 249 P.2d 885]; McClure v. Donovan (1947) 82 Cal.App.2d 664, 666 [ 186 P.2d 718].) "It is . . . a violation of [an attorney's] duty for him to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent given after full knowledge of all the facts and circumstances.
There is no support in the record for the appellant's assertion that the executor or the attorneys for the executor violated a fiduciary duty to appellant. Appellant's reliance upon Hammett v. McIntyre, 114 Cal.App.2d 148 [ 249 P.2d 885], is misplaced. In that case a law firm defending a personal injury action on behalf of an insurance company represented two defendants with conflicting interests.