Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON 241 Cal.App.2d 520, 50 Cal.Rptr.592 (1966) Case Brief
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON PURPOSE: A conflict of interest arises when an attorney represents both sides in a divorce.
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON CAUSE OF ACTION: Malpractice (legal).
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON FACTS: Roberta Ishmael was formerly married to Earl F. Anders, a partner in a family trucking business. She and her husband agreed on a divorce and property settlement. She knew she was entitled to one-half the marital property. Anders called defendant attorney Millington, an attorney who represented him and his trucking firm. At Anders’ request, Millington agreed to act as the wife’s attorney in the divorce. Anders took the complaint and property settlement agreement and had his wife sign them. She knew Millington had represented her husband.
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON She did not discuss the property settlement agreement with the attorney before she signed it. At court Mr. Millington took her through a routine hearing resulting in a divorce decree and judicial approval of the property settlement. Mrs. Anders discovered that in return for a settlement of $8,807 she had surrendered her right to community assets totaling $82,500. She seeks damages for the attorney’s negligent failure to make inquiries as to the true worth of the community property.
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON ISSUE: Whether a divorce attorney, hired by the husband and representing the wife, owes a duty to the wife to verify the husband’s financial statement.
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON HOLDING: Yes, an attorney representing both husband and wife, having undertaken a potential conflict of interest, must not neglect the interests of either party.
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON REASONING: Elements of legal malpractice: ‘First, that there existed the relationship of attorney and client; second, that in relationship advice was given; third, that he [the client] relied upon such advice and as a result thereof did things that he would not otherwise have done; fourth, that as a direct and proximate result of such advice and the doing of such acts, he suffered loss and was damaged thereby.’ (continued)
Copyright 2007 Thomson Delmar Learning. All Rights Reserved. ISHMAEL v. MILLINGTON REASONING (continued): Representing both parties to a divorce (or, as here, having been a long-time attorney for the husband and subsequently representing the wife in an uncontested divorce) is unwise from an ethical standpoint because of the inherent conflict of interest. The defense that the client sought no advice from the attorney does not relieve the attorney of his ethical duties.