Sunday, April 12, 2015

The Evidence Code as Suicide Pact

Amis v. Greenberg Traurig, No. B248447 (D2d3 Mar. 18, 2015)

This is a malpractice case where attorneys allegedly gave bad advice to their client. They advised him to accept personal liability on a settlement with his corporation, even though it would be nearly impossible to prove personal liability at trial. When that decision ultimately resulted in significant losses to the client, client sued for malpractice. Client’s problem is that allegedly bad advice was given during a mediation, and the mediation privilege in Evidence Code § 1119 prohibits use of pretty much anything done or said in connection with a mediation from ever being used in a future litigation. So when it came time for summary judgment, plaintiff didn’t have any admissible evidence to prove his claim.

You might be thinking that it doesnt really make any sense to apply the mediation privilege to malpractice claims based on bad legal advice in connection with a mediation. Especially when the attorney-client communications are made outside the presence of the other participants in the mediation. Why would the mediation privilege protect that? The Supreme Court basically agrees that its senseless. See Cassel v. Superior Court, 51 Cal. 4th 113, 122 (2011). But taken literally, the Evidence Code unambiguously encompasses the advice. Given California’s strong rule against the judicial creation of policy based exceptions to statutory privileges, not making sense is not really a valid reason to enforce the privilege as written. The policy implications arising from the overbreadth of the privilege are the Legislature’s problem. That’s what the court said in Cassel, and the court here follows the rule.


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