Several weeks ago, I posted a blog about the enactment of Senate Bill 954 as Evidence Code section 1129. This new law effective January 1, 2019 requires counsel to obtain a written acknowledgement from their clients as soon as is reasonably possible after agreeing to mediation or to a mediation consultation that they understand the restrictions of mediation confidentiality.
What has slipped by unnoticed is a resolution passed by the California Conference of Bar Associations (CCBA) during the California Lawyers Association’s (formerly a part of the State Bar of California) convention in mid-September 2018. Resolution 08-09-2018 would amend
…Evidence Code section 1120 to allow attorney-client communications made during mediation to be admissible in State Bar disciplinary proceedings or civil actions for malpractice. This resolution should be approved in principle with recommended amendments because it protects clients from unscrupulous attorneys who use the confidentiality of mediation to cloak their own wrongdoing, to the detriment of their clients, and allows clients to seek redress for attorney negligence in the context of mediations.
The exact language would be as follows:
(4) The admissibility, in a State Bar disciplinary action or an action for legal malpractice, only, of relevant communications directly between the client and his or her attorney, only, where breach of a professional obligation in a mediation context forms the basis of the client’s allegations against the client’s attorney, provided that the evidence does not constitute or disclose a mediation communication of any mediation participant other than the client and attorney.
Admission or disclosure of evidence under this subdivision does not render the evidence, or any other mediation communication or writing, admissible or discoverable for any other purpose.
After considerable debate, the vote for and against the resolution was tied and so the Chair broke the tie by voting for its approval.
Like prior attempts to create an exception to mediation confidentiality, the rationale behind this resolution was that attorneys should not be “…excused from their fiduciary duties and professional obligations…” as lawyers simply because their actions and/or omissions occurred during a mediation or mediation consultation (Id.) and thus cloaked with confidentiality and rendered inadmissible as evidence in any subsequent proceeding.
Notably, the Resolution under “Reasons” notes the overwhelming opposition encountered by the California Law Revision Commission (CLRC) in the summer of 2017 to its 178-page Tentative Recommendation to create such an exception. That study by the CLRC grew out of Assembly Bill 2025 introduced in 2012. When that bill met with great opposition, the legislature recommended that the CLRC study the matter which it did as its study K-402. The CLRC spent 5 years and created over 3000 pages of memoranda in its study of whether to create an exception to mediation confidentiality for legal malpractice and other attorney misconduct. The opposition to its Tentative Recommendation to create a new exception to mediation confidentiality was so over whelming that the Commission could not even find a legislator to sponsor the proposed new law. It died quietly.
The next step is to find a legislator to sponsor this proposed amendment to Evidence Code section 1120. Given the recent history of the CLRC’s failed attempt after its lengthy and very detailed analysis and the recent enactment of SB 954, I question how far this resolution will go. If it does find a sponsor, I have no doubt that it will meet with the same vehement opposition as did its predecessor.
But, I do not have a crystal ball… so we shall see what happens. Life sometimes can be very strange.
…. Just something to think about.
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