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Ethics/Malpractice


Wimsatt v. Superior Court, 61 Cal.Rptr.3d 200 (Ct. App. 2007)  (reluctantly reversing a judicially-created perjury exception to confidentiality, and precluding the client in this legal malpractice action from discovering mediation briefs and emails that would support the allegation that his lawyer lowered his settlement demand without authority; but refusing to issue a protective order for the contents of the conversation in which the lawyer purportedly lowered the demand, reasoning that plaintiff failed to meet his burden to establish that the conversations actually occurred in mediation).

   Wimsatt Video



Statewide Grievance Committee v. Kennelly, No. CV040833515S, 2005 WL 758055 (Conn. Super., Feb. 25, 2005)  (reprimanding inexperienced attorney for misrepresenting in joint session of mediation the amount of available insurance, where he disclosed to mediator in caucus that "he had more money" but did not volunteer the actual balance remaining on the liability policy).

Statewide Grievance Video



Simpson v. JAMS/Endispute, L.L.C., No. A110634, 2006 WL 2076028 (Cal.App. 1 Dist. July 26, 2006)  (affirming applicability of quasi-judicial immunity to dismiss complaint against mediation provider for ineffective service, including alleged failure to ensure participation of opposing party and trying to "force" a settlement).

Simpson Video



Sealed Party v. Sealed Party, No. CIV. A. H-04-2229, 2006 WL 1207732 (S.D. Tex. May 4, 2006)  (concluding that attorney breached fiduciary duty to his former client not to disclose the non-public fact that the parties had reached a mediated settlement when he issued a press release about the settlement, but dismissing the client's fiduciary duty claim because of lack of damages).

   Sealed Party video



Shake v. The Ethics Committee of the Kentucky Judiciary, 122 S.W.3d 577 (Ky. 2003)  (vacating opinion of the Ethics Committee of the Kentucky Judiciary and finding no appearance of impropriety when a judicial officer serves without compensation on the board of directors of a non-profit local mediation organization): 

Quote from the Court's Majority Opinion: We find no valid basis for the Ethics Committee's fear that litigants may feel compelled to choose mediation if the judge sits on a mediation organization's board. Under Kentucky's Model Mediation Rules, [footnote omitted] which were developed under the direction of this Court, a judge may refer a case to mediation regardless of whether the parties desire mediation. [footnote omitted] Although the decision to choose mediation is frequently made by the litigants, the fact that the judge sits on a mediation organization's board is an insignificant factor in the making of that decision by litigants when compared to the litigants' knowledge that the judge has the absolute discretion to order mediation even if they choose otherwise. NOTE from the Dissent: 3 of 7 judges voted to adopt the Ethics Committee opinion that precluded judicial service on the non-profit mediation board.  

Shake video



Morgan Phillips, Inc. v. JAMS/Endispute, L.L.C., 44 Cal.Rptr.3d 782 (Cal. Ct. App. 2 Dist. June 20, 2006)  (concluding that arbitrator's withdrawal from arbitration proceeding for no stated reason and continued service as a mediator was not sufficiently associated with adjudicative phase of arbitration to justify arbitral immunity in a suit brought against the neutral for alleged breach of contract and other claims).

Morgan video



In re Philpot, 820 N.E.2d 141 (Ind. 2005)  (issuing public reprimand to attorney who maintained a website suggesting that clients should lie and create "throw away" demands to achieve successful results in mediation). NOTE: One judge dissented "believing that for advising the public to lie at mediation meetings, the respondent should be suspended from the practice of law without automatic reinstatement.") reconsideration denied Jan. 17, 2006.

   In re Philpot video



In re Non-Member of State Bar of Arizona, 152 P.3d 1183 (Ariz. 2007) (concluding that lawyer licensed to practice in Florida and Virginia engaged in unauthorized practice of law by representing sellers in private mediation of a real estate transaction dispute in Arizona. 

   In re Non-Member of State Bar of AZ Video



Home Depot, U.S.A., Inc., v. Saul Subsidiary I Ltd. Partn., 159 S.W.3d 339 (Ky. Ct. App. 2004) (affirming grant of mandatory injunction to demolish a retail store for owner's breach of land covenants, and rejecting claim that trial judge should have recused herself after conducting an unsuccessful mediation session instead of deciding the matter without an evidentiary hearing, where: 1) the Code of Judicial conduct specifically authorizes judges to "mediate or settle matters pending before the judge"; 2) the store owner suggested or at least acquiesced in the trial court's mediation efforts; and 3) there was no affirmative showing of bias or partiality, and absent such showing the trial court's hint that it might pass the case on to another judge if mediation was unsuccessful is alone insufficient to justify recusal), rehearing denied, Oct. 8, 2004. 

Home Depot video



Hall v. Cohen, No. 270949, 2007 WL 258311 (Mich. App. Jan. 30, 2007) (reversing trial court's dismissal of attorney malpractice claim, finding that plaintiff's testimony after the mediated settlement that she was satisfied with the settlement, satisfied with defendant's legal representation, and was acting free of threat or coercion did not constitute collateral estoppel precluding her malpractice claim). 

   Hall Video