• Von Dutch hats and allegations of legal malpractice Tuesday, November 17, 2009

    
    

    Nichole Richie and Paris Hilton, themselves famous for being famous, wore Von Dutch Originals hats on one of those horrible television shows a while back, and helped make the caps famous.

    One of the guys behind the enterprise was Michael Cassel, once an owner of the faddish clothing company. Here’s a Los Angeles Magazine piece about the company and one of the many fights that broke out as Von Dutch fell apart.

    Cassel filed a trademark infringement suit involving his stake in the company, and met with his lawyers before mediation and indicated an amount for which he was willing to settle.

    At mediation, the parties entered into a $1.25 million settlement agreement. Cassel sued his lawyers for malpractice, claiming they pressured him to sign an agreement for an amount less than he had indicated was acceptable in his private conversations with them prior to mediation. The law firm, then named–Wasserman, Comden, Casselman & Pearson, LLP, David B. Casselman and Steve K. Wasserman–fought back.

    The issue before the court was whether, as a matter of law, mediation confidentiality requires the exclusion of conversations and conduct solely between a client, and his attorneys during meetings in which they were the sole participants and which were held outside the presence of any opposing party or mediator prior to a mediation.

    Superior Court Judge William A. MacLaughlin of Los Angeles ruled in favor of the attorneys holding that the conversations that Mr. Cassel had with his attorneys were part of the mediation process, leading up to the actual mediation and that they were confidential communications in preparation for mediation between a client and his attorneys.

    Justice Frank Y. Jackson, writing for the majority, reversed the trial court, concluding that when applying the mediation confidentiality provision, a court must consider the timing, context and content of the communications. The appellate court focused upon the fact that these communications were made in private away from the presence of any opposing party. The court said:

    Legislative intent and policy behind mediation confidentiality are to facilitate communication by a party that otherwise the party would not provide they are not to facilitate communication between a party and his own attorney; they are not to facilitate communication between a party and his own attorney.

    Justice Dennis M. Perluss dissented, saying the majority’s decision is“ inconsistent with the Supreme Court’s repeated disapproval of ‘judicially crafted exception[s]’ to the mediation confidentiality statutes.” Cassel v. Wasserman, Comden, Casselman & Pearson, L.L.P., Court of Appeal, 2nd Dist. Div 7 (B215215)

    –Steve Ingram

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