Alfieri v. Solomon

While communications in mediation an settlement may not be admitted into evidence under ORS 36.222, communications afterwards may. Under ORCP 23, a plaintiff must be allowed to amend his complaint once as a matter of right.

Solomon, Alfieri’s employment attorney, was allegedly negligent in his representation and allegedly breached his fiduciary duty to Alfieri during and after mediation. Solomon performed limited discovery and failed to file an amended complaint after being granted the privilege. When a settlement was reached, Solomon failed to advise Alfieri further. Alfieri sued for legal malpractice. The trial court dismissed Alfieri’s complaint with prejudice, and Alfieri asserted the trial court erred in doing so. The Court held the trial court did not err in striking parts of the complaint that contained confidential information about the settlement and mediation, but the trial court did err in striking what Alfieri introduced post-settlement. The trial court also erred by dismissing Alfieri’s complaint with prejudice because he must be given a chance to amend his complaint once. Motion to strike affirmed in part and reversed in part; judgment of dismissal with prejudice reversed.