Another Major CCBA Proposal Enacted

The California Legislature enacted the third Conference of California Bar Associations-sponsored proposal to become law this year on Monday, August 20, when the Assembly concurred in Senate amendments to ACR 98 by Assemblymembers Don Wagner and Jeff Gorell, this year's legislative resolution directing the activities of the California Law Revision Commission (CLRC). Because ACR 98 is a resolution, not a bill, it takes effect immediately upon adoption by both houses of the Legislature, without need to be signed into law by the Governor.

Assm. Jeff Gorell

The CCBA-sponsored provision of ACR 98 directs the CLRC to analyze the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct, and to make appropriate recommendations for any changes the commission finds are needed in the law. This provision  addresses the major problem identified by the California Supreme Court in Cassel v. Superior Court (2011) 51 Cal.4th 113, where the court held that, because of the nearly-absolute nature of statutory mediation confidentiality, evidence of attorney misconduct, incompetence or malice is inadmissible in a malpractice action or State Bar disciplinary proceeding if it involves attorney-client communication "pursuant to" a mediation.

Elizabeth A. Moreno

This provision was inspired by CCBA Resolution 10-06-2011, which was developed by Elizabeth Moreno of the Beverly Hills Bar Association delegation and adopted by the Conference in September 2011.  However, the spirit of the resolution took a very circuitous route to enactment.  It was first introduced as AB 2025 by Assemblymember Gorell as a bill to amend the Evidence Code relating to mediation confidentiality in the manner suggested by Justice Ming Chin in his concurring opinion to Cassel.  However, in light of concerns about the bill language raised by the California Dispute Resolution Council (CDRC) and California Defense Counsel, all parties agreed that the soundest policy decision was have the issue studied by the well-respected CLRC.  AB 2025 was so amended, and was approved by the Assembly on a 76-1 vote.

Assm. Don Wagner

When the bill got to the Senate, however, it encountered one of those arcane rules that the public rarely hears about:  Because the bill called for only a study - even a study likely to produce substantive legislation - the Senate Rules Committee refused to refer the bill to a policy committee, thereby ensuring its death.  To keep the measure alive, therefore, its substance was amended into ACR 98, carried by Assemblymember Wagner, and Assemblymember Gorell added as joint author.  The amended resolution was approved unanimously by the Senate and by the Assembly.

The CLRC consideration of the issue of mediation confidentiality v. public protection is likely to be erudite and interesting, with lots of input from a variety of organizations and individuals.  It is also likely to be a process that takes at least a year, and quite possibly more.  But we have confidence that the end result will be a well-considered recommendation for legislation that will provide an appropriate balance between the need for confidentiality in mediations and the essential requirement that the public be protected from bad and unethical lawyers.  It is a worthy goal, set in motion by the CCBA.