Significance of Decision
This decision categorically precludes application of mediation confidentiality under California Evidence Code §1119 to attorney-client communications, regardless of whether those communications occur during or in connection with a mediation. Instead, it leaves the admissibility of attorney-client communications to the statutory scheme that defines the attorney-client privilege, including its recognition of the absence of a privilege where a communication is relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.
The longevity of the decision remains to be seen. The defendant, Wyner Tiffany, has filed a Petition for Review with the California Supreme Court which is pending. Notably, the California Supreme Court has recently granted review of Cassel v. Superior Court (2009) 179 Cal.App.4th 152, another decision dealing with the application of mediation confidentiality to private communications between a lawyer and client.
In a controversial decision, which includes a sharp dissent, Division Eight of the Second Appellate District of the Court of Appeal of the State of California recently held that attorney-client communications are not covered by mediation confidentiality under California Evidence Code (“Ev.C.”) §1119. Specifically, the court found that communications between an attorney and client that had taken place while the client’s mediation was occurring were not protected by section 1119 and were admissible in a subsequent action involving a fee dispute between the client and lawyer. Porter v. Wyner (2010) 183 Cal.App.4th 949.
Section 1119 provides: “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”
The Porter case involved former clients (the “Porters”) who, after resolving a case through mediation (the “underlying action”), brought a subsequent action against their lawyers (“Wyner Tiffany”) for allegedly breaching their fee agreement.
Central to the dispute between the Porters and Wyner Tiffany was the Porter’s claim that in response to a concern about so-called “double dipping” raised by defendants in the mediation of the underlying action, Wyner Tiffany advised Ms. Porter to drop her lost earnings claim against defendants and assured her she would be paid out of the attorney fee recovery. In alleged reliance on this representation, Ms. Porter dropped her lost earnings claim and the case settled. At trial, testimony was provided by the Porters and Wyner Tiffany regarding what was said during their conversation. The alleged conversation took place outside the presence of the mediator and the other parties participating in the mediation.
The Porters obtained a favorable judgment against Wyner Tiffany. Approximately a month later the California Supreme Court issued its opinion in Simmons v. Ghaderi (2008) 44 Cal.4th 570. Wyner Tiffany moved for a new trial arguing that it was prevented from having a fair trial because of irregularity in the trial proceedings, namely that the communication between Ms. Porter and Wyner Tiffany was subject to mediation confidentiality under Ev.C. §1119 and that admission of such was improper. The trial court, relying on the recent decision in Simmons, granted the motion. The Porters promptly appealed.
The court of appeal reversed and remanded the case back to the trial court.
The Court’s Analysis
The court of appeal rejected Wyner Tiffany’s contention that their communication with the Porters was subject to mediation confidentiality under Ev.C. §1119. The court emphasized that the confidentiality provided for under Ev.C. §1119 “was never intended to protect communications or agreements between a client and his own counsel should a conflict arise between them.” Porter, supra, 183 Cal.App.4th at 960. The court further emphasized that Ev.C. §954, which codifies the attorney-client privilege, already provides necessary protection and Ev.C. §958, through its waiver procedure, allows a client to seek appropriate recourse if something places her and her attorney on a course of conflict. Id. Ev.C. §958 provides: “[t]here is no privilege under this article as to 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.”
The court of appeal reasoned that extension of mediation confidentiality to the attorney-client relationship would render section 958 a nullity. Id. The court also noted that expanding mediation confidentiality to cover communications between a lawyer and her client would undermine the attorney-client relationship and create a chilling effect on the use of mediations because clients would be precluded from pursuing remedies against their own counsel for deficiencies occurring during the mediation process as well as representations made to the client to induce settlement. Porter, supra, 183 Cal.App.4th at 961.
The court expressed its view that “[t]he confidentiality aspect which protects and shrouds the mediation process should not be extended to protect anything other than a frank, candid and open exchange regarding events in the past by and between disputants. It was not meant to subsume a secondary and ancillary set of communications by and between a client and his own counsel, irrespective of whether such communications took place in the presence of the mediator or not.” Id.
Although the communication had undeniably taken place while the mediation was occurring, the court stated: “[i]n our view, communications between an attorney and their client cannot be considered ‘for the purpose of, in the course of, or pursuant to, …’ a mediation. (§ 1119, subd. (a).) Communications between a client and an attorney are made to facilitate the passing of critical information about the facts of a case to a lawyer who can sort out their legal significance and use them to advocate his client’s behalf. The discussions between them are made for the sole purpose of resolving the party’s lawsuit in a manner that is as advantageous as possible to the client.” Porter, supra, 183 Cal.App.4th at 961-962.
The court further noted that if the phrase “for the purpose of a mediation” were given an interpretation broad enough to encompass communications between the attorney and client it would be difficult to determine where the demarcation line might be drawn as to those communications between an attorney and his client that are for mediation and those that are not: “[i]f communications between an attorney and his counsel are considered ‘for the purpose of mediation,’ virtually every discussion between an attorney and his client during the course of the representation could be considered as falling within that definition because any discussion may be used for a mediation purpose down the line.” Porter, supra, 183 Cal.App.4th at 662-663. The court explained that for the same reasons, communications between an attorney and his own client cannot be considered to be “pursuant to” a mediation or “in the course of” a mediation. Porter, supra, 183 Cal.App.4th at 962.
Finally, the appellate court rejected the argument that excluding attorney-client communications from mediation confidentiality would create a non-statutory exception to the comprehensive scheme embodied by Ev.C. 1115 et seq. because in its view “the communications between the Porters, on the one hand, and Wyner Tiffany, their attorneys, on the other hand were not within the purview of the mediation confidentiality statutes in the first instance.” Porter, supra, 183 Cal.App.4th at 965.
One justice dissented from the majority opinion. She argued that the communication was obviously “for the purpose of, in the course of, or pursuant to” mediation because the only reason the conversation took place was because a mediation was taking place and efforts were being made to settle the case and the conversation represented an effort to bring the mediation to fruition. Porter, supra, 183 Cal.App.4th at 966 (“The purpose of the Wyner-Porter conversation was to move the mediation along, it took place in the course of the mediation and it was pursuant to the mediation because that was the only reason the conversation took place.”) (Emphasis in original).
The dissenting justice also noted that Porter was not just giving facts of the case to her attorney, she was discussing with her attorneys whether she should drop her loss of earnings claim in return for the promise that Wyner would cure the resulting deficiency from his fees, and that the only reason this conversation was taking place was because of the mediation. Porter, supra, 183 Cal.App.4th at 967.
The dissent also challenged the rational for the majority’s other conclusions. In that regard, the dissenting judge noted that it was not difficult to determine whether the attorney-client communications in this case were for the purpose of mediation. She also pointed out that application of mediation confidentiality to attorney-client communications would not render all evidence inadmissible since evidence otherwise admissible or subject to discovery outside a mediation does not become inadmissible solely by reason of its use or introduction in a mediation (see Ev.C. §1120(a)). Finally, she noted that statements made months or years before a mediation took place would not likely be covered by mediation confidentiality since they are unlikely to have taken place for the purpose of, in the course of, or pursuant to a mediation. Id.
The dissenting judge also refuted the argument that extending mediation confidentiality to attorney-client communications would nullify Ev.C. §958. The dissent noted that section 958 speaks to the absence of “privilege” when a communication is relevant to an issue of breach by the lawyer or by the client of a duty arising out of the lawyer-client relationship, but that mediation confidentiality is “not a privilege.” Porter, supra, 183 Cal.App.4th at 967. The dissenting justice further emphasized that existing case law, including the California Supreme Court’s decision in Simmons, has consistently refused to create judicial exceptions to the statutory scheme “even where justice seems to call for a different result.” Porter, supra, 183 Cal.App.4th at 968.
Significance of Decision