Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


No More Mediation Confidentiality Protection for Negligent Attorneys 

The California legislature is considering a new evidence code exception to mediation confidentiality. The revision allows clients who have been provided negligent legal advice in the context of a mediation, to use as evidence communications and documents otherwise subject to the mediation confidentiality rule. The law revision has been in the works since 2012, and comes in response to the California Supreme Court’s decision in the case of Cassel v. Superior Court (2011) 51 Cal.4th 113.  In the Cassell case, a client sued his attorney for what the client claimed was negligent advice to settle during a mediation. The trial court dismissed the claims based upon the mediation confidentiality rule contained in Evidence Code section 1119, which states in pertinent part:

“ (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”

The Court of Appeal reinstated the suit, based on the reasoning that the law was not intended to serve as a shield for negligent lawyers who wished to escape their professional obligations to their clients, regardless of the context in which legal advice was provided. The California Supreme Court, however, found that the law, as written, provided for no such exception to the mediation confidentiality rule, and overturned the decision of the appellate court, essentially inviting the legislature to change the law if it believed that an exception was warranted in cases of legal malpractice claims.

The law revision commission created by the legislature, made up of mediators, lawyers, judges, and elected officials, has been working for the past several years to determine whether or not the law should be revised to provide an exception to the mediation confidentiality rule in cases of legal malpractice. The commission began studying the issue in mid-2013; it held 22 public meetings, heard testimony from several dozen people, received comments from hundreds of individuals and organizations, and reviewed thousands of pages of staff research and analyses

In analyzing the proposed exception, the commission focused on the direct clash between two strong policies, to wit: (1) attaining the societal benefits of mediation confidentiality; and (2) furthering public confidence in the justice system and the pursuit of justice for all.” (CLRC Recommendations at page 22, emphasis in original document).

Ultimately, the Commission concluded that current law did not properly hold attorneys accountable to their clients for negligent advice, and recommended that the law be changed to the extent that mediation confidentiality would not apply to legal malpractice claims, State Bar disciplinary proceedings, or disputes related to attorneys’ fees. The law specifically does not allow the undoing of settlements, testimony or documents of or from mediators, or any liability to attach to mediators. Public comment was closed on September 1, 2017, and the law is expected to be enacted in due course.

-- Deborah Wolfe

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**