January 1, 2019, Attorney Disclosure Requirements for Mediation Take Effect
Newly adopted Evidence Code §1129 and an amendment to Evidence Code §1122 (a)(3) take effect on January 1, 2019 to require all California attorneys to provide clients involved in mediation with a written disclosure of mediation confidentiality restrictions and obtain a signed client acknowledgment. Class action lawsuits are an exception and the client’s signed disclosure form is admissible in any subsequent disciplinary proceeding to determine if the attorney has complied with Evidence Code §1129.
A sample “safe harbor form” is included in the body of Evidence Code §1129, a copy of which you can obtain here. Concerns about “burying the disclosure” within an initial retainer agreement or amongst other routinely executed documents was expressed throughout the Legislative history. The disclosure form must be printed in at least 12 point font, in the language preferred by the client, “on a single page that is not attached to any other document provided to the client”. In terms of timing, the disclosure must be provided to the client “as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation” or, if the attorney was retained after the client has agreed to mediation, “as soon as reasonably possible after being retained.”
These amendments to the Evidence Code were adopted to address the California Supreme Court’s decision in Cassel v. Superior Court (2011) 51 Cal.4th 113. The Court in the Cassel case held that statutorily established mediation confidentiality applied to all exchanges of information between an attorney and his client in preparation for and during mediation, thereby precluding the admission of any attorney statements or conduct in the client’s subsequently filed malpractice and disciplinary action. An earlier bill introduced in 2012 to address the Cassel decision proposed the creation of statutory exceptions to mediation confidentiality in an action for legal malpractice, for breach of fiduciary duty or in connection with a State Bar disciplinary proceeding; however, as a result of a 5 year study by the California Law Revision Commission and strident opposition on many fronts, the former bill never made it to a vote. Instead, Senate Bill 954 was passed adding §1129 and amending §1122 to the Evidence Code as a more tailored solution.
The “safe harbor form” includes language that many attorneys may find distasteful, including the following: “NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.”
On its face, Evidence Code §1129 (a) only specifically requires the attorney to provide the client with a printed disclosure that contains the confidentiality restrictions described in Evidence Code §1119. Some practitioners might be tempted to simply copy and paste Evidence Code §1119 into their own self-crafted disclosure forms. At first blush this approach may appear more palatable than to use the safe harbor form since §1119 says nothing about malpractice, discipline or criminal prosecution. However, Evidence Code §1129 requires the signed client acknowledgment to state that (s)he has read and understands the confidentiality restrictions. The judicial history of the Cassel case demonstrates that the full nature and breadth of the “confidentiality restrictions” are not evident to clients and a simple recitation of Evidence Code §1119 is likely to be insufficient. The Legislative history surrounding the adoption of these new sections of the Evidence Code makes clear that the main impetus for their adoption is to ensure that clients affirmatively appreciate the full range and depth of the mediation confidentiality statutes. The additional statements included in the safe harbor form are intended to provide attorneys with assurance that their disclosure form meets “the client understanding” requirement and if properly executed will presumably insulate the attorney if a mediation client later expresses regret over a settlement by way of an attorney disciplinary complaint.
The information provided in this article is provided by Lisa Garvin Copeland of Desert Cities Mediation, is intended for educational purposes only and should not be considered as legal advice. Visit our website at www.desertcitiesmediation.com or contact our office via email at firstname.lastname@example.org to schedule your next mediation or arbitration.
Copyright 2018, Lisa Garvin Copeland Esq., dba Desert Cities Mediation.