Slip op. at 1.Wyner Tiffany had previously represented the Porters in a separate lawsuit brought by the Porters against the Manhattan Beach Unified School District and the California Department of Education. The instant lawsuit arose as a result of Wyner Tiffany's failure to follow through on a promise that was allegedly made to the Porters during a mediation of that underlying action wherein Wyner Tiffany promised to pay the Porters certain proceeds from their attorneys' fees. Though Wyner Tiffany initially objected to the admissibility of the communications made during the mediation of the underlying lawsuit, they later withdrew the objection. At trial, evidence of the communications between Wyner Tiffany and the Porters with respect to the promises made at the mediation were admitted. Approximately a month after the trial court entered judgment, it granted a motion for new trial because it believed the then newly decided case of Simmons v. Ghaderi (2008) 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934 (Simmons), mandated such a result.
Appellants claim the trial court erred in granting the new trial, as the communications between an attorney and its client do not fall within the purview of mediation confidentiality. Wyner Tiffany contend the trial court properly granted their motion for a new trial because the jury's consideration of confidential mediation communications created an irregularity in the proceedings statutorily mandating a new trial. Wyner Tiffany also cross-appeal, contending the trial court erred in ruling their motion for a judgment notwithstanding the verdict (JNOV) was moot.
A split Court of Appeal panel held that communication between attorney and client do not fall within the protection of mediation confidentiality. After reviewing the confidentiality provisions of Evidence Code Section 1119, et seq., the Court held:
The purpose, policy and intent behind mediation confidentiality is to protect the free flow of communication and ideas (e.g.demands/offers) that form the basis and structure of a successful resolution process. The confidentiality that is accorded mediation was never intended to protect communications or agreements between a client and his own counsel should a conflict arise between them. The attorney-client privilege, codified in section 954, already provides the necessary protection. Section 958, through its waiver procedure, allows a client to seek appropriate recourse should something occur that places him and his attorney on a conflict course. It provides that there is “no privilege” that covers “a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” (§ 958.)Slip op. at 7. The Court expressed concerns that extending mediation confidentiality to attorney-client communications would make it impossible for clients to waive the attorney-client privilege and would have a chilling effect on the use of mediations. Ibid.
The Court also expressed concern that if it allowed mediation confidentiality to include attorney client communications, it would lead to a slippery slope wherein all attorney-client communications in a mediated case could be considered as being confidential, "virtually every discussion between an attorney and his client during the course of representation could be considered as falling within that definition because any discussion may be used for a mediation purpose down the line." Slip op. at 8.
Finally, the Court distinguished the decision in Simmons v. Ghaderi (2008) 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934, in which the California Supreme Court held that mediation confidentiality must be strictly construed and prevents introduction of evidence that a doctor consented to the settlement of a medical malpractice action where the doctor refused to sign a written settlement agreement. The Court held that the Simmons decision's strict protections for mediation communications did not apply to the statements at issue here, since they were not subject to confidentiality in the first place.
I believe that the Porter majority reached the correct result. Attorneys must remember that the clients are the holders of the attorney-client privilege and may waive the privilege when they believe that their attorneys have acted inappropriately. As the Porter majority noted, expanding mediation confidentiality to include attorney-client communications would eviscerate this important public protection.
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