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Court sanctions trial lawyer for breach of confidentiality.

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58 Alternatives
Vol. 14, N o 5 May 1996
CPR Institute for Dispute Resolution
Court Sanctions Trial Lawyer
For Breach of Confidentiality
By Jarril F. Kaplan
A federal court in New York has imposed sanctions against a lawyer for
violating confidentiality provisions of
the court’s mediation program.
The dispute was a copyright, trademark and patent lawsuit commenced
before Judge Denny Chin of the U.S.
District Court for the Southern District of New York.Judge Chin, at the
request of the defendants and over
the objections of the plaintiffs, entered an order referring the case to
the mediation program established
as part of the court’s CivilJustice Expense and Delay Reduction Plan.
The plan refers to mediation as “a
confidential ADR process.”
Judge Chin’s order reiterated the
fact that the process was confidential, and the parties received at least
two other reminders not to reveal
what went on. A “Notice of Selection
of Mediator,” sent to both sides,
stated in part: “Pursuant to order of
this court the entire mediation process is confidential.” At the beginning of the first mediation session,
the mediator advised the parties that
the proceedings were to be kept confidential.
The mediation session did not go
well. A second mediation session,
held by telephone conference, also
failed to bridge the large gap between
the parties. Counsel for defendants
asked to continue the mediation.
In opposing the request, Donald
L. Cornwell, lead counsel for the
plaintiffs, wrote Judge Chin a letter
disclosing, among other things, the
terms of certain settlement offers
(including specific dollar amounts)
made during the mediation. His justification: defendants had opened
the door by corresponding with
Judge Chin about continuing the
mediation process. Judge Chin disagreed. The defendants, who Mr.
Jarril F Kaplan is Of Counsel to Snell CY
Wilmer in Phomix, and a member of thejirm s
ADR Committee.
Cornwell sent a copy of the letter,
asked the judge to impose sanctions
for violating the mediation order.
Judge Chin granted that request.
He found that Mr. Cornwell violated
Judge Chin’s order and the confidentiality provisions that apply in
mediation cases. “I can only
conclude.. .that Mr. Cornwell violated my order and the confidentiality
provisions willfully
deliberately, that he did so in an effort to undermine the mediation
process in this case, and that the violation was serious and egregious,”
Judge Chin wrote. He fined Mr.
Cornwell $2,500 and ordered him
not to accept reimbursement from
his clients, meaning that Mr.
Cornwell had to pay the fine out of
his own pocket.
PeterBernard v. Galen Group, Inc., 901
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court, sanctions, lawyer, confidentiality, tria, breach
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