Concurring Opinion By Justice Chin Expresses Discomfort With Result

     In Cassel v. Superior Court, 51 Cal.4^th 113, 119 Cal. Rptr. 3d 437 (2011), the California Supreme Court addressed whether the mediation confidentiality protection applies to attorney-client communications when the client sues the attorney for malpractice. (Ordinarily, the attorney-client privilege flies out the window when the client sues for malpractice).

     The trial court sided with the attorney, based on the plain language of the statute. Evidence Code section 1119(a) provides, “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation … is admissible or subject to discovery ….” The petitioner/client sought mandate.

     Siding with the client, the Court of Appeal believed, “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.” Cassel, supra, 51 Cal. 4^th at 118. Falling back on the “plain language of the statute”, the Supreme Court agreed that confidentiality protected against the admissibility of evidence in the malpractice dispute. The Court’s opinion was authored by Justice Baxter.

     Justice Chin concurred in the result, “but reluctantly,” inviting the Legislature to consider the effect of the statutory provision, as drafted, in shielding an attorney from malpractice.

Confidentiality:  P.E. Hadlick, Secretary of the National Oil Marketers Association, whispers a bit of information into Senator’s Guy M. Gillette’s ear.  March 31, 1938.  Library of Congress.