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Controversial Mediation Confidentiality: Client v. Attorney

By Paul Fisher1

Some attorneys may be taking comfort in the decision reached by the California Supreme Court in Cassel v. Superior Court, 51 Cal. 4th 113 (2011). The Supreme Court concluded that in a claim by a client against his or her attorney for malpractice allegedly committed during mediation, communications between attorney and client during mediation are not admissible pursuant to mediation confidentiality (Evidence Code section 1119 et seq.) and there is no exception in a malpractice claim by a client against their attorney. The Supreme Court did acknowledge the conflicting policy concerns of mediation confidentiality and the client’s right to sue his or her attorney. Those policy concerns are now being considered by the California Law Revision Commission (LRC).

The LRC is in the process of preparing a tentative recommendation that would propose an exception to the mediation confidentiality statutes and would address attorney malpractice and other misconduct. The LRC tentatively decided that the exception should utilize an in camera screening process. This presents a significant public policy consideration of the conflicts between mediation confidentiality, and allowing some disclosure of mediation communications so purported victims of attorney misconduct during mediation would be able to obtain redress, and the interest of the public in observing and monitoring the performance of courts, a first amendment right of access.

The LRC will be considering compromise measures which will provide some access to sensitive information to achieve justice in a pending suit without full public disclosure. The alternative measures, in addition to an in camera screening process, include creation of a certificate of merit requirement for a legal malpractice case that alleges mediation misconduct, sealing orders, protective orders and redaction of documents. The LRC encourages public comment. As of September 20, 2016, the online petition by Citizens Against Legalized Malpractice had about 640 signatories.

The law has not changed, yet, and will likely affect only those claims which arise after such a law becomes effective. However, that will not stop extremely angry aggrieved parties from suing their attorneys based on earlier claims.

1Copyright by Paul Fisher 2016