The California Supreme Court heard oral argument today in a case that could result in a chilling effect on attorney-client communications. The questions presented are 1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evidence Code sections 1115 through 1128; and, 2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evidence Code section 1119, subdivision (c) and 1122, subdivision (a) (2)? As to third-parties, the answers would seem obvious.
But this is not about third-parties. It's about a subsequent malpractice claim.
The case is Cassel v. Superior Court. The plaintiff alleges that his lawyers threatened to abandon him on the eve of trial unless he agreed to settle. The trial court ruled that conversations between the plaintiff and his lawyers were covered by mediation confidentiality and could not be used in the subsequent malpractice action. But the Court of Appeal reversed.
In a divided opinion, the appellate court held that settlement related discussions that took place out of the actual mediation setting could come in. The majority opinion, looking to the legislative intent behind the mediation confidentiality statutes, found "no indication of any leglislative intent that the mediation confidentiality statutes were to protect a lawyer from his client..."
Defendants' counsel contends that allowing these communications to be admissible will create a chilling effect in mediations as counsel are often merely conduits for pressure tactics and other communications from the mediator. Critics also argue that the appellate decision will lead to an increase in buyer's remorse lawsuits following settlements, with clients then turning on counsel. In response, plaintiff's counsel argues that despite the broad scope of the mediation privilege, it was never intended to shield attorney-client communications in a subsequent dispute between them.
Thoughts? We'll have the Supreme Court's thoughts within 90 days. Stay tuned.