In Re Marriage Of Egedi

105 Cal. Rptr. 2d 518 (2001)

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Nature of the Case

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Facts

In July 1998, H and W filed a joint petition for summary dissolution of their marriage. H and W then asked an attorney to formalize their MSA. He had previously represented W in a criminal matter and husband in a paternity action. He told the parties that he did not want to prepare the MSA because of a potential conflict of interest. He advised them to obtain independent counsel. However, the parties had extreme confidence in the attorney and insisted that he prepare the MSA. He ultimately agreed to serve as the scrivener of their agreement. He told them that he would not render legal advice but would merely set out the terms that the parties had agreed to and add standard provisions normally found in an MSA. The parties faxed their signed agreement, drafted by H, specifying the terms to be included in the MSA. The attorney would not discuss the terms with him because of the potential conflict of interest. The attorney testified that he spoke to both parties on the telephone only to confirm the terms they wanted to be included in the final MSA. H and W met with the attorney at his office to sign the MSA. The attorney again discussed the potential conflict of interest. They both signed a waiver which provided: 'This will confirm that Angela Egedi and Paul Egedi have been advised that . . . [attorney's] mere typing of an agreement made between the parties may be a potential conflict of interest, despite the fact that he was not in the advisory capacity, nor involved in the negotiation of the agreement. Each party knowingly waives any potential conflict of interest in the preparation of the parties agreement. In addition, each party has been advised to seek independent legal counsel and advice with respect to this letter and the agreement.' W fully performed her MSA obligations but H elected not to pay spousal support as agreed. W sought judicial enforcement. H contends that the MSA should be set aside on various ground, i.e., failure of consideration, unfairness, improper conduct by an attorney, fraud, duress, undue influence, and mistake. The trial court ruled that the MSA 'may not be enforced because the conflict disclosures were inadequate to permit his dual representation of the parties.