California lawyers must disclose the confidentiality rules that apply to mediation to their client before the mediation. California Evidence Code section 1129 ensures that attorneys make their clients aware of the confidentiality rules related to mediation, including that communications between a client and his or her attorney cannot be used in a subsequent action against the attorney.
Section 1129 states: “an attorney representing a client participating in a mediation consultation, shall, as soon as reasonably possible before the client agreement to participation in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgement signed by the client stating that he or she has read and understands the confidentiality restrictions.”
If the attorney is retained after his or her client agrees to mediate, the attorney should comply with the rule as soon as reasonably possible after being retained. The only exceptions to the rule are class or representative actions.
The Legislature made compliance easy by providing a full text of a compliant disclosure. The disclosure must: (1) be printed in the preferred language of the client in at least 12-point font; (2) be printed on a single page that is not attached to any other document provided to the client; and (3) include the names of the attorney and the client and be signed and dated by both.
Any lawyer involved in a matter that could involve mediation should become familiar with this law. Attorneys who representations regularly involve mediations should consider making this disclosure at the outset of the representation, although it may not be part of the attorney-client agreement because it must be a stand-alone document.
About the author:
John Sullivan is the Chair of BASF’s Legal Malpractice Section. He is a partner at Long & Levit and a contributor to Long & Levit’s Lawyers and Judge’s Blog, www.longlevit.com/blog/, which is searchable by topic and case name.