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Ethical duties of California attorneys in negotiating agreements and contracts

Do attorneys in California have an ethical duty to disclose an error made by the attorney for the opposing party is the topic of this blog post. While many individuals, attorney and layperson alike might believe that an attorney has no such duty the simple fact is that they do in fact have a duty to disclose an error, even an error made by the attorney for the opposing party.

In a case from over 40 years ago, a California Court of Appeal invalidated a property settlement agreement because the attorney for the former husband was aware of a mistake made by the other attorney during the negotiations and drafting of the agreement but did not disclose the error to the other attorney.

The Plaintiff Joan C. Stare had appealed from an adverse judgment in an action to reform a property settlement agreement with her former husband, Joseph Timothy Tate the defendant, and to enforce the agreement as reformed.

The Court of Appeal in Stare v. Tate (1971) 21 Cal. App. 3d 432, 437 stated that, “There is really no substantial conflict in the evidence and it is hard to understand how the trial court could do anything but grant Joan’s prayer for relief.” The Court also stated that “The case was fully tried and, as we said at the outset of our discussion, the record supports nothing but a judgment for the plaintiff as prayed.” See Stare v. Tate 21 Cal. App. 3d supra at 440.

And the fact that the mistake was made by the other attorney is no defense. See Voge, Inc. v. Rose, (1962) 205 Cal. App. 2d 534, 539-540.

And the Court also stated that, “The rule that the party who misleads another is estopped from claiming that the contract is anything but what the other is led to believe, appears to be quite generally accepted. Citing many cases from other jurisdictions and noting no contrary authority Corbin says: “Reformation may be a proper remedy even though the mistake is not mutual. If one of the parties mistakenly believes that the writing is a correct integration of that to which he had expressed his assent and the other party knows that it is not, reformation may be decreed. The conduct of the other party in permitting the first to execute the erroneous writing and later attempting to enforce it may be regarded as fraudulent; but it is enough to justify reformation that he knows the terms proposed by the first party and the meaning thereof and leads that party reasonably to believe that he too assents to those terms. This makes a contract; and the writing may be reformed to accord with it. The fact that the first party was negligent in failing to observe that the writing does not express what he has assented to does not deprive him of this remedy. The ground for estoppel is against the other and non-mistaken party, not against the mistaken party even though he is negligent.” 3 Corbin on Contracts, § 614, pp. 730-732. The rule is also in accord with the Restatement of Contracts.” See Stare v. Tate 21 Cal. App. 3d supra at 438-439.

As shown by this blog post, a California attorney does have a duty to disclose an error made by the other attorney during the negotiations and drafting of any property settlement agreement, or any agreement for that matter.

Attorneys or parties in California who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author can use the following link: View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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