Last Thursday, February 23, 2012, Assembly Member Wagner introduced AB 2025 before the California State Legislature. The proposal seeks to create an exception to mediation confidentiality by amending Section 1120 of the  California Evidence Code to allow the introduction of evidence:

(4) …in an action for legal malpractice, an action for breach of fiduciary duty, or both, or in a State Bar disciplinary action, of communications directly between the client and his or her attorney during mediation if professional negligence or misconduct forms the basis of the client’s allegations against the attorney.

The full bill may be found here—

In sum, this proposed legislation will allow a client to bring either a civil action or disciplinary action before the State Bar against her attorney if she believes that her attorney breached her fiduciary duty or committed legal malpractice, professional negligence or misconduct during a mediation. It does not amend any other sections of the California Evidence Code to allow either the mediator or the other participants to the mediation to testify as to what occurred during the mediation. They must remain mum, bound by mediation confidentiality.

If you wish to comment on the proposed legislation, AB 2025, including suggested amendments, please contact its sponsor, Assembly Member Donald P. Wagner either at his district office;  3 Park Plaza, Suite  150, Irvine, Ca. 92614; telephone: 949-863-7070 or at his office in Sacramento;  The State Capitol, Room 4153, Sacramento, Ca 94249-0070; telephone: 916-319-2070.

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by Phyllis G.Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com