San Diego County Department of Social Services v. Martha G.

WOODWORTH, J.,*

Concurring—I concur in the majority’s affirmance of the judgment.

With all respect, however, I would suggest that some comment is in order concerning the very serious ethical issues raised by the appellant. As pointed out in the majority opinion, the appellant has not shown in this case that the trial court’s refusal to disqualify county counsel was in any way material to the outcome. But this is an issue that is bound to arise in other cases. If we say nothing about the conflict of interest question, I fear county counsel may be misled into thinking no problem exists.

The following conclusions seem to be fairly supported by the record. 1. At all material times county counsel represented the public conservator, an employee of the department of social services, in his capacity as conservator of the person of Martha G. 2. County counsel acted as attorney for the department of social services in the proceeding brought under Civil Code section 232. 3. At all material times the conservator was under a fiduciary obligation to act in the best interests of Martha G. (See Cal. Conservatorships (Cont.Ed.Bar 2d ed. 1983) § 6.2, p. 283.) 4. Since the conservator and the department of social services have potentially conflicting duties with respect to the termination of Martha G.’s parental rights, county counsel ought not to represent both entities.

It appears to me that the integrity of the judicial process is placed under a cloud when dual representation is allowed. It is the potential for abuse, not the actuality, that creates the conflict of interest. “[A]n attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his clients’ interests. . . . The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an at*1441tempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.” (Anderson v. Eaton (1930) 211 Cal. 113, 116 [293 P. 788].)

Disqualification of counsel was correctly ordered in the cases of Global Van Lines, Inc. v. Superior Court (1983) 144 Cal.App.3d 483 [192 Cal.Rptr. 609] and William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042 [197 Cal.Rptr. 232], I think it should have been ordered in the present case as well.

Nevertheless, for reasons correctly stated by the majority, it is necessary to affirm the judgment of the trial court.

On September 9, 1988, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied November 30, 1988.

Assigned by the Chairperson of the Judicial Council.