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Bar Association of San Francisco Member Benefits: Publications

Attorney-Client Communications Not Subject to Mediation Confidentiality


By Andrew Dilworth, Cooper, White & Cooper LLP

In a controversial opinion, the California Court of Appeal recently held attorney-client communications are not covered by mediation confidentiality under Evidence Code §1119. Instead, admissibility of attorney-client communications is governed by Evidence Code §§950 et seq. which define the attorney-client privilege and its exceptions. Porter v. Wyner (2010) 183 Cal.App.4th 949.

The case involved a firm that represented a plaintiff during mediation. In response to a concern raised by the defendant in the mediation, the lawyer spoke privately with the plaintiff and allegedly advised her to drop a lost earnings claim, assuring her she would be paid out of the attorney fee recovery. The case settled. Plaintiff eventually sued the firm for breaching their fee arrangement. Evidence of the lawyer’s and plaintiff’s prior conversation was admitted. On appeal, the firm contended that the conversation was inadmissible under Evidence Code §1119 and a new trial must be granted.

The court explained that mediation confidentiality was never intended to protect communications between a lawyer and client in dispute. Expanding confidentiality to such communications would undermine the attorney-client relationship and chill the use of mediations by precluding clients from seeking remedies against attorneys for deficiencies during the mediation. The court held
that attorney-client communications cannot be considered “for the purpose of, in the course of, or pursuant to” a mediation under Evidence Code §1119, reasoning that if the phrase “for the purpose of a mediation” were given an interpretation broad enough to encompass such communications it would be difficult to determine where the line should be drawn as to those communications that are for mediation and those that are not. For the same reasons, the court concluded that attorney-client communications cannot be considered “pursuant to” or “in the course of” a mediation.

The opinion includes a dissent which argues that the attorney-client communication at issue was obviously “for the purpose of, in the course of, or pursuant to” a mediation because it was made in an effort to bring the mediation to fruition. The firm has filed a Petition for Review with the California Supreme Court.

Andrew Dilworth is a Litigation Partner at Cooper, White & Cooper. His practice focuses on the law governing lawyers.

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