By Donald L. Swanson

Attorneys make mistakes.  It happens.

Here’s a case where two competing attorneys each violate a court rule on mediation confidentiality:  In re Anonymous, 283 F.3d 627 (4th Cir. 2002).

The hand-slap

The two attorneys get hauled before the Court to explain their dastardly deeds.  But in the end, they only get their hands slapped.  No sanctions are imposed because the violations were mistakes (i.e., no bad faith or malice) that had little or no adverse impact on anyone or anything.

The sledge hammer

But the Court uses a sledge hammer to do the slapping:

• Upon learning of the violation, the Court issues a new Standing Order that says:
  • all information from a mediation session “shall be kept confidential . . . without prior approval of the Standing Panel on Attorney Discipline,” and
  • any alleged violation “shall be referred to the Court’s Standing Panel on Attorney Discipline for a determination” on “whether imposition of discipline is warranted.”
• The violating attorneys are directed to “appear before our Standing Panel on Attorney Discipline to address whether” their conduct “breached the confidentiality provision of Rule 33.”
• The Court requests the Office of the Circuit Mediator to “participate in this proceeding as amicus curiae.”
• The Court issues a 6,000-word opinion to explain the violations and discuss related matters—that’s a boatload of words!

Yikes!!  Glad it wasn’t me.

How bad?

The sledge hammer seems a little . . . well . . . excessive.  The violations seem closer to jaywalking than to robbing a bank.

But . . . don’t take my word for it.  Here is a simplified version of the facts . . . then you can judge:

• Client hires an attorney to pursue a Title VII claim in U.S. District Court for retaliatory firing.  It’s a contingent fee plus expenses arrangement.
• A jury trial results in a verdict for plaintiff, but the trial court reduces the verdict amount.  Both parties appeal to the Fourth Circuit Court of Appeals.
• The Office of the Circuit Mediator for the Fourth Circuit conducts a mediation under the Fourth Circuit’s Local Rule 33, resulting in a settlement.
• Meanwhile, a dispute arises over expense reimbursements between plaintiff and plaintiff’s former attorney.  Plaintiff’s new attorney and plaintiff’s former attorney agree to submit the reimbursement dispute to an arbitration panel sponsored by the Virginia State Bar.

Then, the violations occur.  Here they are:

• Plaintiff’s new attorney submits information from the mediation session to the arbitration panel and sends interrogatories to the Mediator; and
• Plaintiff’s former attorney obtains defendant’s consent to use mediation information in the arbitration and requests a similar consent from the Mediator

That’s it.  That’s what happened.  Those are the violations.  Not-quite felony-level stuff.  Carelessness is involved, for sure . . . and probably some naivete.

The Court finds that the attorneys’ actions violate mediation confidentiality obligations but decline to issue any sanction.  These results seem accurate and proper.

But why the sledge hammer approach:

• issuing a Standing Order for the entire court system in response!
• hauling the attorneys before the Standing Panel on Attorney Discipline!
• seeking the amicus curiae input of the Office of the Circuit Mediator!
• writing a 6,000 word opinion!

It seems excessive.