BILL ANALYSIS Ó
AB 2025
Page 1
Date of Hearing: May 8, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2025 (Gorell) - As Introduced: February 23, 2012
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : ATTORNEY MISCONDUCT: MEDIATION PROCEEDINGS
KEY ISSUE : SHOULD THE COMPLEX ISSUE OF ATTORNEY RESPONSIBILITY
FOR MALPRACTICE AND MISCONDUCT IN MEDIATION PROCEEDINGS BE
ANALYZED BY THE CALIFORNIA LAW REVISION COMMISSION WHICH HAS
PREVIOUSLY STUDIED AND HAS EXPERTISE ON THE ISSUE OF MEDIATION
CONFIDENTIALITY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The California Law Revision Commission has developed
considerable expertise over many years on the issue of
confidentiality in mediation proceedings. This
non-controversial measure will have the Commission study and
report to the Legislature regarding a specific and complex
question that the Commission appears not to have considered
previously - the relationship between mediation confidentiality
and attorney malpractice and other misconduct. The bill is
prompted by a recent California Supreme Court decision
interpreting current law, and raising questions about the policy
implications of that law. There are many concerned stakeholders
with strongly held views on all sides, and the Commission
process allows for full investigation and deliberation of these
technical and complex issues.
SUMMARY : Requires the California Law Revision Commission to
study and report to the Legislature regarding mediation
confidentiality. Specifically, this bill provides that the
California Law Revision Commission shall study and report to the
Legislature regarding the relationship under current law between
mediation confidentiality and attorney malpractice and other
misconduct, and the purposes for and impact of those laws on
public protection, professional ethics, attorney discipline,
client rights, the willingness of parties to participate in
AB 2025
Page 2
voluntary and mandatory mediation and the effectiveness of
mediation, as well as other issues the Commission deems
relevant.
EXISTING LAW establishes the California Law Revision Commission
and authorizes the Commission to study topics at the request of
the Legislature. (Government Code Section 8280.)
COMMENTS : The California Law Revision Commission has developed
considerable expertise over many years on the issue of
confidentiality in mediation proceedings. This
non-controversial measure will have the Commission study and
report to the Legislature regarding a specific and complex
question that the Commission appears not to have considered
previously - the relationship between mediation confidentiality
and attorney malpractice and other misconduct. The bill is
prompted by a recent California Supreme Court decision
interpreting current law, and raising questions about the policy
implications of that law. There are many concerned stakeholders
with strongly held views on all sides, and the Commission
process allows for full investigation and deliberation of these
technical and complex issues
Author's Proposed Amendments. To provide for appropriate
consideration of these complex and technical issues, the author
properly proposes to amend the bill by substituting the
following language:
The California Law Revision Commission shall study and report to
the Legislature regarding the relationship under current law
between mediation confidentiality and attorney malpractice and
other misconduct, and the purposes for and impact of those laws
on public protection, professional ethics, attorney discipline,
client rights, the willingness of parties to participate in
voluntary and mandatory mediation and the effectiveness of
mediation, as well as other issues the Commission deems
relevant. Among other matters, the Commission shall consider
Evidence Code sections 703.5, 958 and 1119 and predecessor
provisions as well as California court rulings, including but
not limited to Cassel v. Superior Court (2011) 51 Cal.4th 113;
Porter v. Wyner (2010) 183 Cal.App.4th 949, and Wimsatt v.
Superior Court (2007) 152 Cal.App.4th 125. The Commission
shall also consider and report on the availability and propriety
of contractual waivers. In conducting its analysis, the
Commission shall consider the law in other jurisdictions,
AB 2025
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including the Uniform Mediation Act as it has been adopted in
other states, other statutory acts, scholarly commentary,
judicial decisions, and any data regarding the impact of
differing confidentiality rules on the use of mediation. The
Commission shall request input from experts and interested
parties including, but not limited to, representatives from the
California Supreme Court, the State Bar of California, legal
malpractice defense counsel, other attorney groups and
individuals, mediators and mediation trade associations. The
Commission shall make any recommendations it deems appropriate
for the revision of California law to balance the competing
public interests between confidentiality and accountability.
REGISTERED SUPPORT / OPPOSITION :
Support (as proposed to be amended)
None on file
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334