Lawyer-Client Talks Relating to Mediation Cannot Be Used to Prove Malpractice Claim

Private discussions that attorneys have with their client during or relating to mediation of the client’s case may not be used against the lawyers if the client subsequently sues them for malpractice, the California Supreme Court declared Jan. 13  (Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson LLP), Cal., No. S178914, 1/13/11, rev’g 25 Law. Man. Prof. Conduct 640).
The court grounded its holding on California’s broad mediation confidentiality statutes, which provide that any statements made for the purpose of mediation are not discoverable or admissible in subsequent noncriminal cases. The statutes plainly cover private attorney-client communications relating to mediation, and applying these laws in a malpractice lawsuit does not violate due process or produce absurd results, Justice Marvin R. Baxter said for the court.
In a concurring opinion, Justice Ming W. Chin said he ‘‘reluctantly’’ agreed that the statute makes private lawyer-client discussions inadmissible. But he urged the legislature to rethink this issue.
Right or Wrong?
Ronald W. Makarem, who represented plaintiff Michael Cassel in the present action, told BNA that ‘‘the ruling allows attorneys to breach their fiduciary duties to their clients within the context of discussing mediation.’’ The decision is unfair to clients and will discourage use of mediation, he said. Makarem is with Makarem & Associates in Los Angeles….