Last week, I posted a blog about the California Supreme Court adopting a new Rule 8.3 (effective August 1,2023) entitled Reporting Professional Conduct as part of California’s Rules of Professional Conduct.
I must confess that I did not read the rule carefully enough. While subpart (a) does, indeed, require a lawyer to report certain misconduct involving a criminal act, dishonesty, fraud, deceit or reckless or intentional misrepresentation or misappropriation of funds or property, subpart (d) provides an exception for “mediation confidentiality:
(d) This rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program, or require disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.8.2; mediation confidentiality; the lawyer-client privilege; other applicable privileges; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234.
The California Supreme Court has made it quite clear that the mediation confidentiality provisions contained in Evidence Code Sections 1115 -1129 are almost absolute:
Judicial construction, and judicially crafted exceptions, are permitted only where due process is implicated, or where literal construction would produce absurd results, thus clearly violating the Legislature’s presumed intent. Otherwise, the mediation confidentiality statutes must be applied in strict accordance with their plain terms. Cassel V. Superior Court (2011) 51 Cal. 4th 113,124
Whether applying mediation confidentiality to the conduct described in Rule 8.3 implicates due process or produces an absurd result is unknown. It is a question that the California Supreme Court may well have to address in the future.
… Just something to think about.
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