BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 1682 (Mark Stone) Version: May 4, 2016 Hearing Date: June 28, 2016 Fiscal: Yes Urgency: No NR SUBJECT Confidential settlement agreements: sexual offenses DESCRIPTION This bill would prohibit a confidentiality or secrecy provision in a settlement agreement in a civil action for an act of childhood sexual abuse or an act of sexual assault against an elder or dependent adult, as specified, and would prohibit a court from entering an order restricting access to or disclosure of any information obtained through discovery. The bill would make a confidential settlement agreement, as specified, void as a matter of law and against public policy, and would create a presumption that an attorney who advises a client to sign such an agreement has committed an act involving moral turpitude and subject to professional discipline. The bill would require the State Bar of California to investigate and take appropriate action against such an attorney. BACKGROUND Existing law disfavors the secret settlement of certain civil actions in which the public has a strong interest. For example, it is the policy of the State of California that confidential settlement agreements are disfavored in any civil action based on a violation of the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). (Code Civ. Proc. Sec. 2017.310.) In addition, confidential settlement of a civil action where the factual basis for the action is "an act that may be prosecuted as a felony sex offense" is prohibited. AB 1682 (Mark Stone) Page 2 of ? Seeking to ensure that the perpetrators of other sexual crimes are made known to the public, this bill would prohibit the secret settlement of civil actions involving the sexual abuse or exploitation of minors, and the sexual abuse of elder or dependent adults. CHANGES TO EXISTING LAW Existing law prohibits a confidential settlement agreement in any civil action the factual foundation for which establishes a cause of action for civil damages for an act that is a felony sex offense. (Code Civ. Proc. Sec. 1002(a).) Existing law , despite the provision above, does not prohibit any of the following: an agreement that requires nondisclosure of the amount paid in settlement of a claim; an agreement preventing the defendant or any person acting on the defendant's behalf from disclosing any medical information or personal identifying information regarding the victim of the felony sex offense or of any information revealing the nature of the relationship between the victim and the defendant; and any right of the crime victim to disclose his or her medical information or personal information, or relationship to the defendant. (Code Civ. Proc. Sec. 1002(b)-(c).) This bill would prohibit a confidentiality or secrecy provision in a settlement agreement in a civil action with a factual foundation establishing a cause of action for civil damages for (1) an act of childhood sexual abuse, (2) sexual exploitation of a minor, or (3) an act of sexual assault against an elder or dependent adult, as specified. The bill would prohibit a court from entering an order, in any of civil actions above, restricting disclosure or access to information obtained through discovery. The bill would repeal the provision specifying that a settlement agreement or stipulated agreement that requires nondisclosure of the amount of money paid in settlement of a claim is not prohibited. AB 1682 (Mark Stone) Page 3 of ? The bill would make a confidentiality or secrecy provision in a settlement agreement, entered into on or after January 1, 2017, void as a matter of law and against public policy. This bill would provide that an attorney who demands such a confidentiality or secrecy provision in a settlement agreement as a condition of settlement or who advises a client to sign an agreement with a confidentiality or secrecy provision is presumed to have committed an act involving moral turpitude that is subject to professional discipline and would require the State Bar of California to investigate and take appropriate action in cases brought to its attention. COMMENT 1.Stated need for the bill According to the author: Strong public policy argument can be made that secret settlements are inappropriate in some cases, specifically matters of concern to the public because they involve particularly vulnerable victims, highly dangerous behavior, or especially egregious conduct. [?]Nevertheless, confidentiality provisions are commonly included in civil settlements. Despite headlines focusing on abusive priests in the Catholic Church, secret settlements involving childhood sexual abuse are by no means limited to the Catholic Church. Other recent examples where secret settlements have occurred include community youth service organizations; foster parents; administrators of homes for the mentally disabled; professional athletes; youth swim coaches; a college football coach; and pop stars. 2.Shedding light on allegations of sexual abuse This bill would prohibit, in civil actions for damages based on allegations of child sexual abuse, child sexual exploitation, or sexual assault against an elder or dependent adult, confidential AB 1682 (Mark Stone) Page 4 of ? settlement agreements. In support, the Association for Los Angeles Deputy Sheriffs writes: Although minors cannot legally enter into contracts or be held to settlements signed by their parents or guardians, secret settlements likely discourage them from ever reporting their abuse to law enforcement. Years later, after they are adults, it may be too late for law enforcement to act because the statute of limitation on charging the acts as crimes may have passed. Secret settlements interfere with the prosecution of predators and could endanger minors. By shielding cases from the public and law enforcement, secret settlements unfairly allow convicted sexual offenders with the financial means to pay for the silence of their victims in an attempt to escape criminal prosecution. Such settlements also endanger other potential victims by shielding such offenders from public knowledge and scrutiny. Staff notes that this bill would only apply to confidential settlement agreements entered into after a civil action has been filed with the court, and thus would not prohibit earlier settlement agreements or expose alleged abusers, who settle prior to a civil suit being filed, to the public. In addition, the settling of a civil case is not necessarily an indication of guilt. The victim or defendant may not wish to go through burden and stress of litigation, and settlements often result in larger sums to the injured party because neither party needs to pay an attorney through the end of trial. That being said, this Committee has supported legislation that disfavors or prohibits confidential settlement agreements in the past to ensure, as a matter of public policy, that the public has notice of certain bad actors. 3.The court's role in managing discovery and evidence Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. A party is entitled to disclosure in discovery as a "matter of right unless statutory or public policy considerations clearly prohibit it. Greyhound v. Superior Court (1961) 56 C2d 355, 378. In general, any party may obtain discovery about any unprivileged matter that is relevant to the subject matter of the action. (Code Civ. Proc. Secs. 2016.010-2036.050.) Once discovered, all relevant information is admissible unless AB 1682 (Mark Stone) Page 5 of ? excluded by statute, for reasons of public policy, or because the court determines the evidence is too unreliable to be presented to the trier of fact. Evidence Code Section 352 provides that "the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." This bill would prohibit the court from entering an order that restricts the disclosure of information obtained through discovery. This would arguably prevent a court from prohibiting a party from seeking information that is irrelevant to the civil law suit, and may also serve to prevent the court from excluding evidence from trial despite the fact that its probative value is substantially outweighed by the probability of misleading the jury. The ability of the judge to exclude relevant evidence under Section 352 is especially important in cases involving sexual abuse, where a victim's sexual history may confuse or prejudice the jury, and the disclosure of such information stands to re-victimize the victim. This bill would also prohibit the court from restricting public access to court records regarding information obtained through discovery. Given the broad scope of discovery described above, depriving the court of the ability to limit access to certain records could seriously violate the privacy rights of the parties, and third parties implicated in the discovery process. Again, this kind of public disclosure could re-victimize a victim, and could also destroy the reputation of a defendant who was falsely accused. The Legislature has tasked courts with managing discovery and evidence because judges are in the best position to prevent abuse of the process and protect the parties. While the author's aim of making sexual predators known to the public is a laudable goal, a "one-size-fits-all" approach would deny judges the discretion they need to ensure fairness and prevent abuse of the system. The following amendments would strike the discovery provisions from the bill, thereby allowing a court to issue discovery protective orders and exempt certain evidence from trial for statutory or public policy reasons, but would otherwise prohibit the "sealing" or court records so that the public may have AB 1682 (Mark Stone) Page 6 of ? access to information related to sexual predators. Author's amendments: 1. On page 2, strike lines 19-21 and insert "Notwithstanding any other law, in a civil action described in subdivision (a), a court shall not enter, by stipulation or otherwise, an order restricting the disclosure of information in a manner that conflicts with subdivision (a)." 2. On page 3, strike lines 1-6 In support, the Conference of California Bar Associations writes, "for far too long, sexual predators, in cooperation with plaintiffs and their lawyers, have been able to keep the facts about their actions hidden from public view by agreeing to settlements in public litigation that keep the facts of the case secret. AB 1682 would substantially increase public protection by prohibiting agreements shielding these dangerous secrets in cases involving allegations of childhood sexual abuse or sexual exploitation of a minor." 1.Attorney discipline This bill would provide that any confidentiality or secrecy provision within a settlement agreement entered into after January 1, 2017, is void as a matter of law and against public policy. Thus, as a practical matter, under this bill, any settlement agreement entered into would stand, but the secrecy provision would be void, thereby making the agreement open to the public. This bill would then provide that any attorney who, in a civil action described by this bill, demands or advises that a client or party sign a settlement agreement with a confidentiality provision is presumed to have committed an act involving moral turpitude and shall be subject to professional discipline. The bill would require that the State Bar investigate the attorney. Existing law provides that "the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension."AB 1682 (Mark Stone) Page 7 of ?A search of the California Codes revealed that in no other statute is such a presumption used. In addition, this bill does not require that an attorney have knowledge that the confidentiality provision in a settlement agreement was prohibited, or establish how an attorney would rebut the presumption of moral turpitude. Further, the discipline included in this bill is arguably harsher than similar (or even more egregious) acts, and could amount to a deprivation of due process for an attorney who is suspended or disbarred. Accordingly, the author may wish to amend the bill to provide that an attorney who demands or advises that a client or party sign a prohibited agreement may be subject to disciplinary action. Author's amendment: 1. Page 3, line 19 strike "An attorney who" and insert "Failure to comply with this section by any attorney may be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention." 2. Page 3, strike lines 20-29 These amendments will ensure that the State Bar has the authority to investigate an attorney who advises (or demands) that a party or client sign a confidential settlement agreement in a civil action for child or elder sexual abuse. On behalf of California Attorney General Kamala D. Harris, the California Department of Justice writes, "This bill closes a perilous loophole in the law that allows perpetrators of sexual abuse against children to evade full accountability by negotiating confidential settlement agreements in civil actions. By affirming that such provisions are in direct contrast with the interests of public policy, AB 1682 will ensure that California's laws conform with its commitment to defending the welfare of its youngest residents." Support : Association for Los Angeles Deputy Sheriffs; Attorney General Kamala D. Harris; Bay Area Women Against Rape; California Association of Code Enforcement Officers; California Coalition Against Sexual Assault; California College and University; California Police Chiefs Association; California Narcotic Officers Association; Center Against Sexual Assault of AB 1682 (Mark Stone) Page 8 of ? Southwest Riverside County; Center for Community Solutions; Coalition for Family Harmony; Conference of California Bar Associations; Consumer Attorneys of California; Kene Me-Wu Family Healing Center; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Monterey County Rape Crisis Center; North County Rape Crisis and Child Protection Center; One SAFE Place; Project Sister Family Services; Riverside Sheriffs Association; Women's Center - Youth & Family Services; Numerous individuals Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : AB 1628 (Beall, 2012) would have, among other provisions, prohibited the confidential settlement of a civil action the factual basis for which is a cause of action for an act of childhood sexual abuse. This bill was held on Suspense in the Assembly Appropriations Committee. AB 2875 (Pavley, Ch. 151, Stats. 2006) prohibits the confidential settlement of a civil action the factual basis for which is a cause of action for "an act that may be prosecuted as a felony sex offense." AB 634 (Steinberg, Ch. 242, Stats. 2003) enacted law disfavoring confidential settlement agreements in actions for a violation of Elder and Dependent Adult Civil Protection Act. Prior Vote : Assembly Floor (Ayes 76, Noes 0) Assembly Appropriations Committee (Ayes 18, Noes 0) Assembly Judiciary Committee (Ayes 9, Noes 0) ************** AB 1682 (Mark Stone) Page 9 of ?