Ethically Speaking

from Res Gestae - July 2022

Past President

by henry lee paul, esq.

Supreme Court hears argument on breach of mediation privilege

The Supreme Court heard oral argument involving allegations of breach of the Florida Mediation Confidentiality and Privilege Act (F.S. 44.401-406) (The Act) in Mintz Trappman P.A. v. Cozen O’Connor, PLC, SC20-1225. The immediate issue before the Court was whether to uphold a ruling by the 3d DCA to issue a writ of prohibition preventing the maintenance of the claim. Oral argument was held on May 3, 2022. The underlying facts involve the perils of breaching the mediation privilege. A privileged mediation communication includes verbal, non-verbal or written communications intended to make an assertion in relation to mediation. The case involved a first party insurance property damage claim filed by Mintz Trappman (Mintz) on behalf of their insured client. The case was removed to federal court and resolved through mediation for $125,000.00 in property damages, with statutory attorney’s fees to be awarded pursuant to F.S. 626.9373. In seeking fees more than $800,000.00, Mintz asserted that the settlement represented “100% of the property damage sustained from the plumbing loss at issue.” In response to the motion for fees, Cozen O’Connor (Cozen) disclosed information in the mediation demand that plaintiff had sought damages far in excess of the settlement. The success achieved was an issue in determining the appropriate award of fees. The federal court ultimately awarded $259,502.81 in fees. Mintz made no issue of the breach of the mediation privilege in federal court. Instead, while the determination of fees was pending, they filed a new action in state court alleging breach of the mediation privilege and requesting damages allowed by The Act. In a motion to dismiss filed in the circuit court, Cozen attached the mediation demand. Subsequently, after the motion to dismiss was denied, Cozen filed a petition for a writ of prohibition, which was granted by the 3d DCA. Cozen alleged that the exclusive remedy for breach of The Act belonged with the federal court and that the circuit court was without jurisdiction to consider the claim. Mintz sought and was granted review by the Supreme Court based on conflict with its prior decisions. Although the jurisdictional issues involving the writ of prohibition brought this case to the Supreme Court, the underlying ethical issues involving alleged breach of The Act should be of interest to litigators. Cases have been dismissed as a sanction for violating the confidentiality of a mediation. See, Paranzino v. Barnett Bank, 690 So. 2d 725 (Fla. 4th DCA 1997). Additionally, violation of the privilege could subject a lawyer to sanction for violation of The Rules of Professional Conduct, including Rule 4-3.4(c) (Disobey Rules of Tribunal). Mintz is seeking damages in the underlying case, including additional attorney’s fees and equitable relief. However, the Supreme Court resolves this case, it is a reminder that breach of the mediation privilege can result in adverse consequences and possible discipline.

Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.

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