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California Legal Malpractice Lawsuits and the Waiver of Attorney-Client Privilege

On Behalf of | Oct 30, 2012 | Articles, Legal Malpractice

What is California Legal Malpractice?

So what drives California legal malpractice? One of the most popularized aspects of the attorney-client relationship is that certain communications are privileged and confidential. That is to say, if you tell your attorney potentially damaging information, he or she generally cannot disclose that information without your consent. Indeed, it would complicate your lawyer’s ability to represent you if you were reluctant to tell them all the facts about your case for fear that your attorney may turn on you and use them against you. While there are few exceptions, but the general rule holds true in many situations.

At the heart of the attorney-client confidentiality is the principle that the client holds the privilege. This means that the client is the only person who has the right to waive the attorney-client privilege.  The waiver can be either express or implied. An example of express waiver of attorney-client privilege is where a client willfully discloses confidential communications to a third party. Waiver can also be implied, when it is established that the client has put otherwise privileged communications directly at issue, and the disclosure of which is essential to preserving a fair trial. On example of where clients often impliedly waive the attorney-client privilege is by filing a legal malpractice claim against their attorney.

California Evidence Code § 958 states that, “There is no privilege … as to a communication to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” Said differently, if you assert that your attorney breached a duty they owed to you, they cannot be prevented from disclosing otherwise confidential protected under the attorney-client privilege needed to defend against your claim. Evidence Code § 958 is not limited to cases dealing with legal malpractice or fees, but it can be limited in certain types of legal proceedings.

Attorney-Client Confidentiality and Mediation

One area of practice where attorney-client confidentiality gets complicated is mediation. In the landmark case Cassel v. Superior Court, 179 Cal. App. 4th 152 (2009) the court held that attorney-client confidentiality relating to mediation cannot be waived even in a subsequent malpractice lawsuit against the attorney. The court explained that while a represented party may generally waive the privilege for communications between himself and his attorney, “the mediation confidentiality statutes do not create a “privilege” in favor of any particular person.” Thus, evidence pertaining to the attorneys’ misconduct from the mediation generally cannot be used as evidence, and any change to the law must come directly from the legislature.

While the Cassel opinion is widely hailed as a means of protecting attorneys from evidence produced during mediation hearings, a qualified California malpractice attorney may be able to get such evidence introduced against your attorney. One area of the Cassel opinion that may allow such evidence to be admitted is whether the communications were made “for the purpose of, in the course of, or pursuant to, a mediation.” Since attorney-client privilege during mediations is such a specialized area of legal malpractice law in California, it’s important to work with a qualified legal malpractice attorney who understands the complexities of mediation confidentiality.

The California legal malpractice attorneys at Makarem & Associates are experienced in all areas of legal malpractice litigation, including claims arising from mediation. In fact, our attorneys represented the plaintiff in the above-mentioned case Cassel v. Superior Court. If you believe you’ve been injured by your attorney’s malpractice, please contact us today by phone 310.312.0299 or email [email protected] to discuss your case. We’re here to help.

Views expressed are the personal views of the author(s) and do not represent the views of Makarem & Associates, APLC, its partners, employees or its clients. Furthermore, the information provided by the author is not intended to be legal advice and does not create an attorney-client relationship.