18 Dec: Mediation Message No. 149

NEW RULE OF PROFESSIONAL CONDUCT PROHIBITING DISCRIMINATION, HARASSMENT AND RETALIATION Former rule 2-400: California’s new Rules of Professional Conduct, which went into effect on November 1, 2018, include rule 8.4.1, which is the revision of former rule 2-400, which prohibited discrimination, or the knowing permission of, on the basis of race, national origin, sex, sexual orientation, religion, age or disability “in the management or operation of a law practice.” That law practice included the hiring,…

18 Dec: Mediation Message No. 148

COMMUNICATING WITH CLIENTS – NEW RULE OF PROFESSIONAL CONDUCT Rule of Professional Conduct 1.4 (effective November 1, 2018), which replaces former rule 3-500, maintains the requirement that lawyers must keep clients reasonably informed about significant developments and promptly comply with reasonable requests for both information and significant documents. The new rule adds that the lawyer shall promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent…

18 Dec: Mediation Message No. 147

A MINOR MODIFICATION OF MEDIATION LAW IS ENACTED Governor Brown signed a bill on September 11, 2018 amending Evidence Code section 1122 and adding section 1129. The totality of the new law requires attorneys to provide clients with a printed disclosure regarding the confidentiality restrictions in the law and to obtain a signed written acknowledgment from the client that he or she has read and understands those restrictions. In part, section 1129 states that “except…

18 Dec: Mediation Message No. 146

LAWYERS MUST DISCLOSE ADVERSE AUTHORITY TO THE TRIBUNAL On November 1, 2018, new Rules of Professional Conduct become effective for all California lawyers. This Mediation Message analyzes rule 3.3, Candor Toward the Tribunal (i.e., a court, arbitrator, administrative law judge, administrative body acting in an adjudicative capacity and special master; note, “tribunal” does not include mediators). Rule 3.3 replaces rule 5-200. Parts of the new rule in effect follow rule 5-200: subd. (a)(1) prohibits making…

18 Dec: Mediation Message No. 145

MEDIATION CONFIDENTIALITY UPDATE As noted in my March 2018 Mediation Message, a bill was introduced in January in the California legislature to add Evidence Code section 1129 which would require an attorney who represents a client in a mediation to inform the client of the confidentiality restrictions in Evidence Code section 1119. In its present form, SB 954 states that, except in class actions, an attorney who represents a client in a mediation, shall provide the client as…

18 Dec: Mediation Message No. 144

MEDIATORS’ WISH LISTS I wrote about “Mediator’s Pet Peeves” six years ago in Mediation Message no. 75. Because of the passage of time, I’ve revisited the subject with a more positive approach, thus pet peeves have become a wish list. I wish mediation briefs were filed timely. Having once been a trial lawyer, I know the practice is demanding and there are never enough hours in the day to complete every legal obligation. Nonetheless, please submit…

18 Dec: Mediation Message No. 143

CONSTRUCTING A BRACKET AT MEDIATION Although brackets are an effective device for mediation negotiations (see Mediation Message no. 80 for a complete discussion of the process), some attorneys hesitate to use them because they’re not experienced composing a bracket. To allay those misgivings, consider the following fool-proof method for easily constructing brackets. Start by picking a mid-point for the bracket. The mid-point, which every opposing lawyer looks at, is the average of the two opposite…

06 Apr: Mediation Message No. 142

THE STATUS OF MEDIATION CONFIDENTIALITY Since Cassel v. Superior Court (2011) 51 Cal.4th 113 held that all communications by attorneys to their clients at all phases of mediation are confidential, even if the communications constitute legal malpractice, little has happened to change Cassel‘s holding. In immediate response to Cassel, AB 2025 was introduced in 2012 at the California Legislature. In short, it provided that mediation confidentiality was not a shield to an attorney in a legal malpractice action or State Bar disciplinary proceeding. The Legislature…

06 Apr: Mediation Message No. 141

CREATING AN ENFORCEABLE SECTION 664.6 REMEDY Merely stipulating in a settlement agreement that the trial court “may enter judgment pursuant to the terms of the settlement” (Code of Civil Procedure section 664.6) is not enough to confer jurisdiction on the court over the settlement unless the parties also make a subsequent request conferring jurisdiction while the case is still pending (i.e. before the matter has been dismissed) and that the request is either in a…

06 Apr: Mediation Message No. 140

THE NEW TAX CODE AND SEXUAL HARASSMENT OR SEXUAL ABUSE SETTLEMENTS On December 22, 2017, the Tax Cuts and Jobs Act was signed into law. Obscured by the politics of that legislation was an amendment (subd. (q)) to 26 U.S.C. § 162 (trade or business expenses) of the Tax Code which states, “No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if…