California Supreme Court Refuses to Create Exception to Mediation Privilege, Prohibiting Disclosure of Attorney Communications in Legal Malpractice Suits

The California Supreme Court recently held in Cassel v. Superior Court, 51 Cal. 4th 113 (2011), that California’s statutory mediation privilege prevents the disclosure of private communications between an attorney and client made before or during a mediation, even in the context of a malpractice suit arising out of the attorney’s alleged conduct in connection with the mediation.

In Cassel, a client sued his former attorneys for malpractice, breach of fiduciary duty, fraud and breach of contract, alleging that they coerced him into settling during a mediation. Id. at 118. The trial court excluded all evidence of discussions between Cassel and his attorneys that took place before or during the mediation. Id. The court of appeal reversed, holding that the mediation privilege did not shield attorney-client communications from disclosure in a malpractice suit. It reasoned that, “the mediation confidentiality statutes are intended to prevent the damaging use against a mediation disputant of tactics employed, positions taken, or confidences exchanged in the mediation, not to protect attorneys from the malpractice claims of their own clients.” Id. (emphasis in original). The dissent objected that, “the majority had crafted an unwarranted judicial exception to the clear and absolute provisions of the mediation confidentiality statutes.” Id.

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