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The Morrison Law Journal
January 2010 .
Volume V, Edition 1

Can Mediation Discussions Between Counsel And Client Be Admitted In
A Later Legal Malpractice Action? A California Court Of Appeal Rules
The Answer May Be Yes In Certain Contexts

By: Edward F. Morrison, Jr., Esq.
Brett C. Drouet, Esq.

Since 2001, the California Courts of Appeal have consistently ruled that
communications, reports and briefs prepared in preparation for or in mediation
will be inadmissible in a later action unless the parties specifically agree
otherwise in writing. See, Evidence Code section 1115, et seq., see also, Foxgate
Homeowners' Association v. Bramalea California, Inc.
(2001) 26 Cal.4th 1, 14;
Rojas v. Superior Court (2004) 33 Cal.4th 407, 415-416, In re Marriage of
(2006) 138 Cal.App.4th 56, 61-62, Fair v. Bakhtiari (2006)40 Cal.4th
189,194 and Wimsatt v. Superior Court (2007)152Cal.App.4th 137.

In a rar.e departure from that trend, a divided Court of Appeal recently
ruled that evidence of discussions between a client and counsel in preparation
for mediation will not necessarily be barred in a later legal malpractice action.
That decision was arrived at in Cassel v. Superior Court (2009)179 Cal.App.4th
152 ("Cassel case").

The Cassel case arose from an underlying action by Michael Cassel against
Von Dutch Originals LLC wherein Cassel claimed an ownership interest in the
Von Dutch Jeans entity and a license to use the Von Dutch Jeans name. Cassel
was represented by the law firm of Wasserman':Comden & Casselman. Shortly
before the trial of that action, Cassel met with his counsel on August 2, 2004,
August 3, 2004 and August 4, 2004 in preparation for, among other things, a
mediation which took place on August 4, 2004. The matter was resolved at the
mediation for $1,250,000.

After that litigation was resolved, Cassel sued his attorneys for legal
malpractice claiming that he had not authorized a settlement at the $1,250,000
level. In preparation for the trial of Cassel's legal malpractice action, Wasserman
Comden & Casselman filed a Motion in Limine seeking to bar evidence of the
discussions between Cassel and his attorneys which took place during the
August 2, 2004 to August 4, 2004 time period. The Trial Court granted the
Motion in Limine on the basis that the discussions dealing with settlement
authority were part and parcel of the mediation process and should be barred.


Cassel then filed a Petition for Writ of Mandate arguing that the
discussions betwee!l Cassel and his attorneys were not within the ambit of the
mediation statute because they only involved counsel and the client, among
other reasons.

In a divided opinion, the Court of Appeal granted the Writ of Mandate
and directed the Trial Court to vacate its order. The Court of Appeal ruled that,
as a matter of law, California's mediation confidentiality.statutes did not require
exclusion of conversations and conduct solely between a client and his attorneys
during meetings in which they were the sole participants and which were held
outside the presence of any opposing party or mediator. The Court of Appeal
reasoned that, in mediation, "a client and his attorney operate as a single
participant" and that the client and counsel in that case were not within the class
of persons to be protected by the statutes since they were not "disputants." The
Court of Appeal further reasoned that the mediation statute was meant to
encourage candor in the mediation, which is not implicated when counsel is
speaking only to his client. Finally, the Court of Appeal found that the
communications were for trial preparation (trial was only two weeks away), not
just for mediation or creation of any documents such as mediation briefs or
witness statements to be used in the mediation, and that the proximity in time to
the mediation did not automatically make the communications protected.

In a stinging dissent, Justice Perluss stated that the majority's conclusion
was "not only at odds with the clear language of [Evidence Code] section 1119,
subdivision (a), but [was] also inconsistent with the Supreme Court's repeated
disapproval. of 'judicially created exception[s], to the mediation confidentiality
statutes.II In particular, the dissent noted that the majority's conclusion ignored
the "for the purpose of" provision in Evidence Code section 1119, stating: "[£lor
that additional statutory language t~ have meaning, mediation confidentiality
must cover statements that were not made 'in the course of' the mediation
proceeding itself.II Further, the dissent pointed out that the majority's
interpretation of the scope of Evidence Code section 1119 would render
superfluous section Evidence Code section 1122(a)(2), which "plainly ...
contemplates the application of mediation confidentiality (absent express.
agreement to the contrary) to private statements made for the purpose of
mediation that are not communicated to the opposing party or.the mediator."

The Cassel case is certainly at odds with a nearly decade long line of
California decisions on point and does appear to be inconsistent with Evidence
Code sections 1119and 1122. It is also noted that the only published decision to
discuss the Cassel case, Benesch v. Green (N.D. Cal. 2009) Westlaw 4885215,
questioned the validity of the majority's ruling. For these reasons, it is likely that


the Cassel case will be narrowly construed as a fact specific decision. However,
attorney practitioners, when meeting with clients in preparation for mediation,
may well be advised to identify such discussions as being for mediation if that is
indeed the intent of counsel.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Brett C.
Drouet is a partner of The Morrison Law Group, a professional corporation.
Their biographies can be viewed at

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