When It's Safe to Talk - Common Client Misconceptions About Communications

Oftentimes, people who are engaged in a legal dispute for the first time are unaware of the ethics rules which govern communications by and to attorneys. Because attorneys must deal with stereotypes about being greedy, fraudulent or dishonest, it is no wonder that so many people have a distrust or trepidation toward attorneys.

Needless to say, without the benefit of having dealt with a conscientious attorney who can help during a trying legal battle, many people will continue to accept the negative stereotype associated with attorneys today. And much like the police (who, in more recent years have also had to deal with a marred image), one never really wants to speak with an attorney – until one is needed.

One glaring result of this can be a fearful hesitancy to speak with an opposing attorney representing the opposing party in court. It is not uncommon to find that some people equate interacting with an attorney as the same as speaking to a criminal investigator. People tend to keep their words and reactions to an absolute minimum when visited by law enforcement (for fear of having those words come back to be used in court later). In much the same way, some people cringe with the prospect of having to speak with an attorney.

For the lay person who has never had to step foot in a law office or courtroom, it is a good idea to read some of the statutes and rules dealing with communications (verbal and written) with attorneys. These are standards which every attorney in California is expected to honor. Because some of these statues and rules can be complicated, we will summarize some of them here.

  1. Rule #1 – What You Say in Negotiations Can’t Come into Court (Offers in compromise and settlement proposals are not admissible in court.)

California Evidence Code §1152(a) tells us that evidence of an offer to compromise, and any conduct or statements made during negotiations, are inadmissible (in court) to prove a person’s liability or fault. In other words, any offer, statements, conduct or communications made within the framework of negotiations or settlement discussions (be they verbal or written) are not admissible in any court or tribunal, after the fact. Essentially, this statute (and others like it) create a dependable foundation by which anyone wishing to enter in to talks to resolve a legal dispute can do so without the fear of having the offer later being used in court against the offeror. Without this statutory assurance, and the freedom to negotiate that comes with it, litigants and their attorneys would be unable to negotiate or settle any dispute.

For an unrepresented party hoping to embark on negotiations with an opposing attorney (assume an e-mail is going to be sent containing a proposal or offer to the lawyer), it is highly advisable to cite or reference Evidence Code 1152(a) with a short notation saying that the offer or proposal made in that e-mail, letter or other communication shall not be admissible in court. This type of notation also lets the opposing attorney or party know that you are aware of the rules concerning certain types of communications and which ones can be considered by a court.

  1. Rule #2 – Like Las Vegas, Stuff Discussed in Mediation Stay in Mediation (Evidence Code §1119 and the absolute mediation privilege.)

In a nutshell, California Evidence Code §1119 works very much like Evidence Code §1152, except that it was designed to deal with mediations. Evidence Code §1119(a) prohibits in court the use of any statement made for, in the course of, or pursuant to a mediation. Meanwhile, §1119(b) prohibits any writing (as “writing” is generally and broadly defined in Evidence Code §250) that is prepared for the purpose of, in the course of, or pursuant to, a mediation. To demonstrate the stringency of this statute’s confidentiality requirements, Evidence Code §1119(c) prohibits any communications, negotiations, or settlement discussions made by the participants in a mediation – just in case the first two subsections did not cover everything. An example of the statute’s absoluteness is that a California appellate has held that a sign-in or attendance sheet that was signed by all the parties to a mediation was inadmissible as evidence, given that it was prepared for the purpose of mediation.

As with communications made for or in response to an offer in compromise, the mediation privilege of Evidence Code §1119 was also enacted to ensure that parties and their attorneys could negotiate within a mediation setting and communicate freely, without the concern or worry of having words, statements or conduct being used later as evidence in court.

  1. Rule #3 - When to Show Your Cards and When to Hold Them Close (Discussing important negotiation points with a mediator.)

In any mediation, the mediator is expected to act as a neutral party who is responsible for overseeing discussions, moving the talks forward and remaining unbiased, while also assisting as much as possible, to bringing about a global resolution that both sides can accept - or at least live with.

When attending a mediation, it is crucial to gauge the mediator’s philosophy on how mediations are to be conducted. If, for instance, there is a piece of information which you would rather not share with the opposing party until a more opportune time during the mediation, then you or your attorney may request that the mediator not share the information or detail until such time. If, however, from the start of the mediation, it is clear the opposing party is using bullying tactics just to gain an upper hand or play some one-upmanship, then wisdom may dictate asking the mediator to reveal that strategic point in your pocket, earlier in the game.

It is important to know that mediators will often gauge the level of intensity in parties’ (or attorneys’) relations and decide whether they will have all parties and counsel share a room, or, whether they will “caucus” between the opposing sides and put them in different rooms. Although there could be several good reasons to caucus, most mediators will caucus simply to encourage free and unfettered communication for both parties. Of course, as a litigant at a private mediation who could feasibly pay between $1,500 and $5,000 per day for the mediator’s time, alone, if the opposing party is altogether intimidating, boisterous, crude or just unpleasant to face, then you may ask that the mediator caucus the mediation, just to be safe. (Caucusing between parties is not even a question if one party is protected by a restraining order and safety is at issue).

  1. Rule #4 – You Can Get A Second Opinion (A party who is already represented by an attorney is free to obtain a second opinion from other, independent counsel.)

Rule of Professional Conduct 2-100 was written to keep attorneys from communicating with parties who they know is represented by another attorney. Without delving into its sub-parts, Rule 2-100 does not prohibit a client who is already represented by counsel from seeking advice from a different attorney of his or her own choosing. In other words, a client is always free to obtain a second opinion and the other attorney sought out by the client will not be penalized or harmed for providing that independent advice. Moreover, the fact that a represented party went to seek advice from another lawyer is something that neither the party nor the consulted lawyer ever have to report to the retained attorney.

Furthermore, although frequently misunderstood by lay people, Rule 2-100 does not prohibit parties (regardless of who is represented between two opposing sides) from continuing to talk or negotiate terms or conditions on their own, without the presence of counsel. Oftentimes, a party will mistakenly assume that just because his or her adversary has retained counsel, then the door is closed to any further negotiations as between those two parties. This is a common misconception and one may cringe to think how many litigants have squandered the chance to keep talks going in order to settle some legal dispute, only because they wrongly believed they were not allowed to speak with one another now that each party has hired an attorney. This is a fallacy among lay people that cannot be overexplained.

Although it is true that under Rule 2-100, an attorney can no longer communicate directly with an opposing party if that party has retained counsel, there is nothing in the law which prohibits the parties themselves from holding an informal meeting to see what points on which they could agree. As a family law practitioner, my clients will often ask me whether they can meet with the opposing party to at least try to talk out a settlement or agreement. Almost always, my response is to encourage such discussions as between the parties themselves; to let my client know that he or she has the freedom to communicate their case objectives; that this type of meeting can be done on an informal basis, without an attorney present; and that other past clients of mine have settled their divorce case, in its entirety, within two hours and over a cappuccino at Starbucks - as long as the parties have that ability to communicate amicably and reasonably with each other.

Of course, encouraging the parties to meet informally among themselves to try to find a resolution should only be advised if: i) there is no restraining order or other court order prohibiting the parties from having contact; ii) that, although a list of agreed terms and conditions can be written up, the client understands that I have strongly warned against executing, signing, dating or writing any note showing any agreement to the document – whatever that document might be. Instead, if the parties have arrived at an agreement in spirit, they may each take a copy of the document and return the copy to their attorney-of-record. This way, the attorneys for the parties can discuss matters with each other and confirm that the terms or stipulations on the document are in fact what both parties both agreed to. Then, the drafting by one or both of the attorneys can begin.

  1. Rule #5 – Let the Elders Help (A meeting of the “chieftains” can sometimes work to bring your legal dispute to a close – if you know a leader in your community whom both you and your adversary respect – on the whole.)

Found primarily among ethnic communities from Africa or Asia and within family law cases, I have seen a phenomena that could easily make an uptight, civil attorney cringe. Yet, it can be used to help bring legal disputes and divorce cases to a close. It is the use of an informal, group meeting, or what I like to call, the “meeting of the chieftains.” What happens is two parties (oftentimes, a spouse and her husband) cannot agree on the final terms and conditions of their divorce judgment. As a remedy, the spouses will each request that an elder or respected leader within their community preside over an informal group meeting, to obviously include both parties. Each spouse might ask that two or more elders (or community leaders) be present for this informal meeting. So, there could as many as five or six others present for the meeting, in addition to the spouses. The spouses will each be given time to explain their case-in-chief, the facts or history of their marriage and, what they each would like out of the agreement. The leaders or “chieftains”, as it were, will listen patiently to each party. They may write questions. They may take notes. They may even a party to explain some inconsistencies. Of course, unlike the strict black letter of California law, they may also be open to discussing issues of morality, if necessary. Then, after giving each side due time to speak, one or more of the elders will begin to inquire about remedies and what each party would be open to accepting, just to bring the case to a resolution. Obviously, neither the communications, conduct or (verbal) agreements arrived at during the meeting are legally binding. However, the parties have implemented a system using respected people from the community they are from to help them arrive at a stipulation or agreement (usually handwritten or typed by someone, without either party’s signature, or name, for that matter), which can then be taken back to the attorney-of-record, who can then reach out to the opposing counsel, to confirm that this was the verbal agreement in fact reached by the parties. This system is not recommended for everyone, and as presented, would cause many practitioners to view it with skepticism and even distrust. However, having worked with several East African clients, this system, within its own framework and rules of engagement, can and does work.

For those who are still unsure about whether it is safe to embark on negotiations with an opposing attorney, or, whether the communication you are about to send is protected by either Evidence Code §1152 or §1119, it is better to be safe than sorry. Consult an experienced attorney who can give you the right answer while the opportunity presents itself.

At Family Law San Diego, we are experienced attorneys who can provide you with tailored advice to guide you through the rules and evidence codes that pertain to your family law case. To schedule a detailed one-hour consultation, please contact us online or call our office at (619) 448-6500. We are here for you.