California legalized attorney malpractice on January 13, 2011. This was not an act of the California Legislature, but instead resulted from the California Supreme Court decision in Cassel v. Superior Court, which concluded that California’s mediation confidentiality statutes, enacted by the Legislature in 1997 legalizes attorney malpractice. This ruling has altered the traditional fiduciary role attorneys have with their clients, allows California attorneys to betray their clients, act in their own interests or those of others without oversight or accountability and with impunity all at client expense. Parties to disputes in California who choose to mediate their disputes were given no notice of this significant change in the law until January 1, 2019.
The California Legislature proposed reform with Assembly Bill 2025, introduced February 23, 2012, but it was immediately challenged and blocked by numerous organizations representing the interests of attorneys intent on keeping the lack of accountability and oversight for what amounts to legalized malpractice. “Citizens Against Legalized Malpractice” wishes to thank Elizabeth Moreno, the original author of AB2025, for providing the following article Ethical Attorneys and Mediators Support Assembly Bill 2025.
The Legislature asked the California Law Revision Commission to study these statutes and recommend changes, if any, in 2013. This is a link to the to the California Law Revision Commission’s study of these statutes which was completed with a final report submitted December, 2017. The CLRC recommended the laws be changed to stop legalized malpractice.
The CLRC recommendation was defeated by organized lawyers in a Legislative committee in 2018. Mediation secrecy continues as the means to keep malpractice legal in California. However the Legislature passed SB-954 which requires attorney’s to disclose that mediation under the current state statutes legalizes their malpractice. The effect of SB-954 on the evidence code and the language of the disclosure may be seen here.