In re Anonymous
| Decision Date | 20 March 2002 |
| Docket Number | No. 01-9543.,01-9543. |
| Citation | 283 F.3d 627 |
| Parties | In re ANONYMOUS, Respondents. Office of the Circuit Mediator for the United States Court of Appeals for the Fourth Circuit, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Decided by published PER CURIAM opinion.
This attorney discipline action arises out of a dispute over litigation expenses between an attorney (Local Counsel) and his client (Client), which developed following a successful mediation (the mediation) conducted by the Office of the Circuit Mediator for this Court (the OCM).1 Local Counsel and Client agreed to resolve their "expense dispute"2 before an arbitral panel sponsored by the Virginia State Bar (the VSB arbitration). In their submissions to the VSB arbitration, Client, Local Counsel, and a third party3 (Current Counsel) (collectively, the participants), disclosed information about or relating to the mediation and also sought responses to interrogatories from the Circuit Mediator. Upon being informed of these disclosures and the discovery effort, the Standing Panel on Attorney Discipline ordered each participant to submit briefs and present argument regarding the propriety of their disclosures in light of the confidentiality provisions of our Local Rule 33. Having considered the various submissions and heard argument in this matter, we undertake to resolve the following issues: (1) whether Client, Local Counsel, and/or Current Counsel breached the confidentiality of the mediation required by Rule 33; (2) whether sanctions are warranted for any breach; (3) whether and under what standard the confidentiality of a mediation may be waived for future disclosures; and (4) whether and under what standard the mediator may divulge information relating to the mediation. Before turning to these significant issues, we set forth in some detail the pertinent factual background and procedural history underlying this dispute.
On March 21, 1997, Client retained the services of an attorney to initiate a Title VII claim for retaliatory firing. In the fee agreement signed by Client, she agreed to pay attorney's fees in the amount of 40% of the total recovery if the matter were resolved after trial and 33 1/3% if the matter settled. "In addition to" the attorney's fees, Client agreed to pay all expenses of litigation, out-of-pocket expenses, and court costs.
In March 1998, the retained attorney hired Local Counsel to aid in preparation of Client's trial. The retained attorney advised Local Counsel that she had obtained a signed fee agreement from Client, but Client did not execute a separate fee agreement with Local Counsel. Local Counsel thereafter advanced the majority of Client's litigation expenses and costs. On March 28, 2000, the Title VII case was tried before a jury. After a three-day trial, the jury returned a substantial verdict in favor of Client, which the district court reduced to comport with Title VII's statutory damages cap.4 Both Client and the defendant appealed to this Court.
After filing their notices of appeal, a mediation conference was conducted before the OCM in December 2000. In attendance at the mediation conference were Client, Local Counsel, Current Counsel, the defendant, the defendant's two attorneys, and the Circuit Mediator. All those in attendance agreed to the confidentiality provision of Rule 33. The mediation conference culminated in a settlement agreement, and this Court entered an order dismissing the appeals.
Subsequent to the mediation conference but prior to the order of dismissal, the expense dispute underlying the current proceeding came to light. Client and Local Counsel agreed to resolve the expense dispute using the VSB arbitration, and Client retained Current Counsel to represent her in the VSB arbitration. On March 1, 2001, acting in his capacity as Client's lawyer, Current Counsel submitted several documents to the VSB arbitration on Client's behalf, including a copy of the settlement points of agreement from the mediation conference, a copy of the typed settlement agreement, and a statement in which Client described conversations that took place during and after the mediation conference. Acting in his capacity as a witness at the mediation conference, Current Counsel submitted his own statement detailing his recollection of certain discussions that took place during and after the mediation conference.
On March 21, 2001, Local Counsel requested the consent of defendant to the disclosure of statements made during the mediation conference. Defendant, through its counsel, granted consent to the disclosure "solely for the purpose of the Bar mediation."5 On the same day, Local Counsel telephoned the Circuit Mediator, informed her of the dispute concerning the reimbursement of expenses and costs, and requested her consent to the disclosure of statements made during the mediation conference. The Circuit Mediator responded that she was unable to give consent without instruction from this Court, and the mediator requested Local Counsel to submit a written, specific request detailing what he proposed to disclose. On March 22, 2001, prior to gaining consent from this Court, and without presenting any further request in support of such consent, Local Counsel submitted several documents to the VSB arbitration, including a statement wherein he described discussions that he had with Client at the mediation conference.
On March 27, 2001, Local Counsel wrote the Circuit Mediator, reiterating his request for her consent to disclose matters discussed during the mediation conference and to disclose notes Local Counsel prepared during the mediation conference. Local Counsel informed the Circuit Mediator that Client and Current Counsel already had breached the mediation's confidentiality, and he asked her to respond in writing to three informal interrogatories. With respect to the interrogatories, Local Counsel noted that he would supply the answers to the VSB arbitration panel, and he would not require the Circuit Mediator to appear at the arbitration.6
The Circuit Mediator then advised this Court of Local Counsel's request for consent to disclosure and his submission of the interrogatories. In response, on October 12, 2001, we issued Standing Order 01-01, which provides in relevant part:
All statements, documents, and discussions in [mediation] proceedings shall be kept confidential. The mediator, attorneys, and other participants in the mediation shall not disclose such statements, documents, or discussions without prior approval of the Standing Panel on Attorney Discipline. Any alleged violations of this rule shall be referred to the Court's Standing Panel on Attorney Discipline for a determination pursuant to Local Rule 46(g) of whether imposition of discipline is warranted.
Pursuant to this Standing Order, Client, Local Counsel, and Current Counsel were directed to appear before our Standing Panel on Attorney Discipline to address whether their submissions to the VSB arbitration breached the confidentiality provision of Rule 33. Having been informed that the Standing Panel was addressing the propriety of the participants' submissions, the VSB arbitration stayed all proceedings regarding the expense dispute until resolution of this matter. The OCM was then requested to participate in this proceeding as amicus curiae. Pending order of this Court, we directed the Circuit Mediator not to divulge information or answer any inquiries relating to the mediation.
Having outlined the significant facts and procedural history, we turn to the issue of whether Current Counsel, Local Counsel, and/or Client breached Rule 33's confidentiality provision, beginning with an examination of the Rule at issue. Rule 33 currently provides in pertinent part as follows:
Information disclosed in the mediation process shall be kept confidential and shall not be disclosed to the judges deciding the appeal or to any other person outside the mediation program participants. Confidentiality is required of all participants in the mediation proceedings. All statements, documents, and discussions in such proceedings shall be kept confidential. The mediator, attorneys, and other participants in the mediation shall not disclose such statements, documents, or discussions without prior approval of the Standing Panel on Attorney Discipline.
4th Cir. R. 33.7 The participants do not deny that they each submitted statements to the VSB arbitration revealing information disclosed during the mediation conference. Further, Current Counsel and Client concede that they submitted the settlement agreement itself, as well as notes regarding the settlement agreement, to the VSB arbitration. Despite the apparent violations of the plain language of the Rule, the participants maintain, for a variety of reasons, that their disclosures did not violate the confidentiality required by Rule 33.
The participants first argue that their disclosures were not prohibited by Rule 33 because the disclosures did not involve matters central to the mediated dispute. The unambiguous text of Rule 33, however, does not draw the suggested distinction; instead, it prohibits the disclosure of "[a]ll statements, documents, and discussions." 4th Cir. R. 33 (emphasis added).8 Moreover, because the confidentiality provision as written provides clear guidance in the form of a bright line rule, we decline to adopt an exception allowing for the disclosure of matters collaterally related to the mediation.
The participants next argue that because their submissions were made to a confidential forum,9 the submissions should not be construed as violating Rule 33. Again, the unambiguous text of Rule 33 does not provide an exception for disclosures made to a confidential forum. Rather, it has at all relevant times...
To continue reading
Request your trial
-
Beazer East, Inc. v. Mead Corp.
... ... In fact, the argument for preserving confidentiality of proceedings is even stronger in this case, where participation in the appellate mediation program is mandatory and the mediation is directed by a court-employed mediator or a judicial officer. See In re Anonymous, 283 F.3d 627, 636-37 (4th Cir.2002) (citation omitted) ... Beazer complains that if Mead's interpretation of Rules 33.5(c) and (d) is accepted then parties will be able to enter into oral agreements at settlement conferences and simply back out on a whim, significantly ... ...
-
Molina v. Lexmark Int'l, Inc., CASE NO. CV 08-04796 MMM (FMx)
... ... See Babasa , 498 F.3d at 975 n. 1 (declining to consider whether a federal mediation privilege exists); Dusek v ... Mattel , Inc ., 141 Fed.Appx. 586, 588 n. 2 (9th Circ. July 29, 2005) (Unpub. Disp.) (same); In re Anonymous , 283 F.3d 627, 639 (4th. Cir.2002) (same). The Fifth Page 18 Circuit, moreover, has specifically refused to infer the existence of a mediation privilege from a federal statute making mediation proceedings conducted under its aegis confidential. See In re Grand Jury Subpoena Dated December 17 , ... ...
-
In re Teligent, Inc.
... ... § 574(b)(5); cf. In re Anonymous, 283 F.3d 627, 637 (4th Cir. 2002) (We believe that the balance between these interests is best resolved by disallowing disclosure unless the party seeking such disclosure can demonstrate that manifest injustice will result from non-disclosure.) ... C. The Disposition of the ... ...
-
In re Teligent
... ... Accord Iridium India Telecom Ltd. v. Motorola, Inc., 165 Fed.Appx. 878, 880 (2d Cir.2005) (summary order) (movant must show a compelling need or extraordinary circumstances necessary to modify [a] protective order); see also In re Anonymous, 283 F.3d 627, 63637 (4th Cir.2002); cf. TheStreet.Com, 273 F.3d at 229 (Where there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c) absent a showing of improvidence in the grant of [the] order or some ... ...
-
Chapter 12 THE LAWYER'S ROLE IN THE FORENSIC ACCOUNTANT'S WORK
...disclosure of specified communications and writings associated with a mediation absent an express statutory exception"); In re Anonymous, 283 F.3d 627, 632 (4th Cir. 2002) ("Information disclosed in the mediation process shall be kept confidential and shall not be disclosed to the judges de......
-
Florida continues to lead the nation in mediation.
...Mediated Settlement Agreements: Contract Law Collides with Confidentiality, 35 U.C. DAVIS L. Rev. 33, 35 (2001). (6) In re Anonymous, 283 F.3d 627, 636 (4th Cir. 2002); Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 930 (2d Cir. (7) Paul Dayton Johnson, Jr., Confidential......