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December 17, 2009

Benesch v. Green, 2009 U.S. Dist. LEXIS 117641 (N.D. Cal. 2009)

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Communications between counsel and client materially related to mediation, even if not made to the other party, are protected as confidential

Fritzi Benesch sued her former attorney, Sharon Green, for legal malpractice arising from a mediated settlement with Benesch’s daughter, son-in-law, and estate planning attorney.  In the underlying case Benesch argued that the written settlement term sheet did not accurately reflect her intent, but the judge nonetheless enforced the term sheet.

Green sought summary judgment on the grounds that California’s mediation confidentiality provisions precluded Benesch from establishing her malpractice claim and prevented Green from meaningfully defending herself.

The Court held the mediation privilege protected all communications that occurred during the mediation, both private communications between Bensch and Green and those with all parties.  It would be inequitable if Benesch could provide evidence of communications with Green during private conferences, while Green was precluded from defending herself by disclosing communications held when all the parties were present.  Prior case law precluded a legal malpractice suit in a different context where an attorney could not present a defense due to privilege issues.

Nonetheless, the Court denied Green’s motion for summary judgment because the parties had not addressed whether there was evidence of malpractice independent of evidence precluded by mediation confidentiality.

Comment: The Supreme Court is set to review the issue of whether the breadth of mediation confidentiality covers private attorney client conferences during the mediation itself.

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