               IN THE SUPREME COURT OF IOWA
                                No. 16–0649

                             Filed April 7, 2017


ESTATE OF MICHAEL G. COX II by Executors, JOLEEN COX and
MICHAEL G. COX SR., and JOLEEN COX, Individually and MICHAEL
G. COX SR., Individually.

      Appellants,

vs.

DUNAKEY & KLATT, P.C. n/k/a KLATT, ODEKIRK, AUGUSTINE,
SAYER, TREINEN & RASTEDE, P.C.,

      Appellee.



      Appeal from the Iowa District Court for Black Hawk County,

Richard D. Stochl (trial judge) and Kellyann M. Lekar (order denying

plaintiffs’ motion for out-of-district judge), Judges.



      Plaintiffs appeal a district court order granting the defendant’s

motion to enforce a settlement agreement.            AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.



      Marc S. Harding of Harding Law Office, Des Moines, for appellants.



      Thomas J. Joensen and Catherine M. Lucas of Bradshaw, Fowler,

Proctor & Fairgrave, P.C., Des Moines, for appellee.
                                     2

MANSFIELD, Justice.

        In this case, we are asked to determine whether the parties in a

legal malpractice case entered into a binding settlement agreement, and

if so, whether the settlement’s confidentiality provision would result in a

violation of our rules of professional conduct. Here, following mediation,

the parties agreed on what would be paid to settle the case. They also

exchanged versions of a confidentiality provision to be included in the

settlement agreement, although they never settled on the same version at

the same time. The defendant law firm nonetheless asked the district

court to enforce the settlement.

        Following a hearing, the court concluded that the parties had

reached a final settlement and dismissed the underlying malpractice

case.    Plaintiffs now appeal, arguing (1) there was no meeting of the

minds on settlement; (2) the confidentiality provision in the settlement as

approved by the district court restricts the right of plaintiffs’ counsel to

practice law in violation of Iowa Rule of Professional Conduct 32:5.6(b);

(3) the court had no authority to seal documents relating to the

settlement; and (4) because the defendant law firm practices primarily in

Black Hawk County, this case should have been heard by a judge from a

different judicial district.

        For the reasons discussed below, we hold that the parties never

mutually assented to the same settlement agreement. We therefore do

not reach the question whether a confidentiality provision requiring the

attorneys not to disclose the existence and terms of the settlement may

violate Iowa Rule of Professional Conduct 32:5.6(b). We also conclude

the district court did not abuse its discretion in sealing documents

related to the parties’ mediation and follow-up negotiations or in

declining to arrange for an out-of-district judge to preside over the case.
                                              3

        Accordingly, we reverse the judgment enforcing the settlement, we

affirm the court’s orders sealing portions of the file and declining to

arrange for an out-of-district judge, and we remand for further

proceedings.

        I. Background Facts and Proceedings.

        A. The Malpractice Suit. This legal malpractice case arises from

work performed by the Dunakey & Klatt law firm for Michael Cox II. The

law firm is based in Waterloo and regularly practices in Black Hawk

County.        In early 2010, the law firm drafted a prenuptial agreement

purporting to waive the rights of Cox’s future spouse to Cox’s 401(k)

plan.     The prenuptial agreement was executed, and approximately

fourteen months later, a petition for dissolution of marriage was filed.

However, before the divorce was finalized, Cox died in May 2011.                          A

dispute arose as to whether the prenuptial agreement operated as a valid

waiver of spousal rights to the 401(k) account. The matter was litigated

in the federal courts, and ultimately any waiver was determined to be

ineffective. Hence, the 401(k) account passed to Cox’s widow rather than

his parents.

        In February 2014, Michael Cox II’s parents, Michael and Joleen,

filed this action for legal malpractice against the law firm and the two

attorneys in the firm who had worked on the prenuptial agreement. 1

Although the action was brought in Bremer County, the parties jointly

requested the matter be transferred to Black Hawk County.                                 In

November, a district judge who regularly offices in Chickasaw County

was assigned to preside over the case.



        1The   Coxes later dismissed their claims against the two individual attorneys.
                                     4

      B. Mediation and Settlement Negotiations. In May 2015, after

several months of discovery had occurred and a motion for summary

judgment had been filed by the law firm, the parties agreed to mediate

their dispute.    On May 29, Michael and Joleen Cox attended the

mediation session along with their attorney, Marc Harding. Troy Miller,

an insurance claims adjuster, appeared on behalf of the law firm’s

insurer. The parties did not reach a settlement during the mediation;

however, Harding, Miller, and the law firm’s attorney, Tom Joensen,

agreed to continue working with the mediator in the ensuing days to try

to resolve the case.

      On June 4, the court received an email from Joensen stating his

understanding that the case had settled. Harding replied, disputing that

the case had settled and instead noting that the parties still disagreed

whether a confidentiality provision would be included in the agreement.

Nevertheless, Harding wrote he was “cautiously optimistic [the case] will

resolve.”

      Following that correspondence with the court, a series of emails

was sent among Harding, Miller, and Joensen discussing the possibility

of including a confidentiality provision in the settlement agreement.

Harding wrote that the Coxes “would be willing to enter into a bilateral

confidentiality agreement on the amounts paid only, subject to disclosure

for tax purposes and if ordered by a court.” Harding indicated that if the

scope of the confidentiality agreement were any broader, it may cause tax

and ethical implications. Several more emails were sent on this subject.

Finally, late on June 4, Miller wrote to Harding:

            I’ve attached a couple of releases but need to have
      approval of my insured as well. Once you review them if you
      have any issues with them please return with any proposed
                                    5
      alternative language and I can run it by [Joensen] and my
      insured for approval.

      The next morning, June 5, at around 10:30 a.m., Harding

responded:

            Pursuant to our discussion, please replace paragraph
      15 of the settlement with the exact language from your
      shorter release, reading as follows:

            The existence and terms of this Release shall be and
      remain confidential between the parties hereto and shall not
      be disclosed by Releasors, except as required by law or order
      of court, without the prior written consent of each of the
      named Releasees, which consent may be withheld for any
      reason whatsoever. The parties agree that the terms of this
      settlement may be disclosed to any Court, (only) as required
      by law.

             We would also agree to an additional line that
      Plaintiffs are permitted to state that the matter has been
      concluded to their satisfaction or similar language.

      Several hours later, still on June 5, Joensen emailed Harding a

document titled “SETTLEMENT AND FULL AND FINAL RELEASE,” which

incorporated the confidentiality language requested by Harding. Joensen

wrote, “Let us know if you agree to this document.” Miller added that he

would “of course need to have [his] insured’s OK as well,” to which

Joensen replied that he “fully expect[ed] them to agree to it, but that is

one last moving piece.”

      Ten days then passed while Harding was away on a Boy Scout trip

to the Boundary Waters. Having returned on June 15, Harding replied

that “the Settlement and Full and Final Release, as revised, is agreeable.”

However, at that point, the law firm had not confirmed acceptance of the

settlement.

      Instead, on June 16, Joensen emailed Harding a different version

of the settlement, which included changes to the confidentiality

provision. Although the provision previously stated that the settlement
                                        6

“shall not be disclosed by Releasors” (the Coxes), the new language

provided that the settlement “shall not be disclosed by Releasors, their

agents, assigns, wards, executors, successors, administrators, and

attorneys.” Joensen wrote that it was Harding’s decision “whether you

have your clients sign” this second version.

       Early on June 17, Harding wrote back.          He objected to the new

language, maintaining that it was overly broad and unethical. Harding

stated that the Coxes “want the June 5 agreement which complies with

the [ethical] Rule by 2 pm, or they want to try the case.”

       At 11:34 a.m. that day, Joensen responded. He questioned why

the parties would proceed to trial if they had already agreed to a

settlement on June 15. He offered to remove the word “attorneys” but

not the word “agents,” and insisted that “ ‘agents’ includes, in its

definition, attorneys.”

       Joensen did not respond further by 2 p.m. and, at 3:55 p.m., the

Coxes filed a motion to set a new trial date. The Coxes’ motion stated

there had been “no meeting of the minds” on the proposed settlement

agreement.

       In response, the law firm promptly filed a motion to enforce a

settlement agreement. The law firm did not identify which version of the

settlement agreement it believed the parties had agreed on, but stated

that   the   “[t]he   Plaintiffs’   concerns   regarding   the   Confidentiality

Agreement are unfounded.”

       Several days later, the law firm filed an additional motion

requesting that the court seal all transcripts, exhibits, and filings related

to its motion to enforce the settlement. The law firm asserted that its

request was necessary “to prevent the de facto disclosure of the very

matters the settlement agreement is intended to keep confidential.”
                                     7

      C. Sealing the Settlement Documents. On August 21, the court

held a hearing on the motion to seal court filings. The law firm reiterated

that its request was limited to pleadings or information related to

settlement negotiations and mediation.

      After argument, the court decided to set a one-day evidentiary

hearing on the motion to enforce the settlement and, in the interim,

granted the law firm’s motion to seal:

      Essentially I’m establishing a confidentiality agreement or a
      confidentiality order as to the specifics of the settlement
      negotiations. And I will seal those pleadings involving that
      only during the pendency until I make a decision on that
      other.

      When Harding asked for clarification, the court continued:

             THE COURT: You can talk to your partners. You can
      talk to anybody involved in this. Of course you can.

            MR. HARDING: Yeah.           I thought that that was the
      case but --

            THE COURT: I just don’t --

            ....

             THE COURT: And I don’t want your clients going
      home today and saying, well, we had a big hearing today on
      the issue. They agreed to pay us X number of dollars --

            MR. HARDING: Yeah.

           THE COURT: -- but they won’t agree to these terms
      and conditions, and the next thing you know, it’s all blown
      up.

      D. Out-of-District Judge. Before the hearing on the settlement

agreement, the Coxes filed a motion requesting appointment of an out-of-

district judge to preside over the remainder of the case.      The motion

urged that a new judge was needed because of the frequency in which

the defendant law firm practiced in front of First Judicial District judges.
                                      8

The Coxes also noted that one of the law firm’s attorneys had recently

been appointed a judge in the First Judicial District, which “increases

the likelihood that a judge of the First Judicial District may be perceived

to have a bias in favor of the Defendant.”         The Coxes argued that

reassignment of judges from different districts is “a common practice

across Iowa” where a party has frequent or significant contact with the

judges of a particular district, even “without any allegation or finding of

bias or partiality.”

      A hearing on that motion took place on October 26 before the chief

judge of the First Judicial District. The Coxes insisted that the existing

assignment of a First District judge left them in a “no-win situation.”

They questioned why an out-of-district judge could not be brought in to

preside over the case. In response, the law firm noted the absence of any

claim that the assigned judge had shown partiality or favoritism. The

chief judge acknowledged that in cases involving legal malpractice or a

law firm as a party, it is a fairly regular practice within the First Judicial

District to assign a judge who has had limited contact with the law firm.

      Still, the chief judge denied the Coxes’ request. The court observed

in its written ruling that the assigned judge had been initially chosen in

part because his principal office was located in Chickasaw County rather

than Black Hawk County.         In the court’s view, this assignment had

avoided any potential appearance of impropriety resulting from a Black

Hawk County law firm defendant and a presiding Black Hawk County

judge. According to the court, the plaintiffs had presented no compelling

evidence that the assigned judge could not fairly and reasonably preside

over the matter.       It concluded the existing special assignment “was

appropriate at the time of the assignment and remains appropriate at the

present time.”
                                         9

      E. Hearing on the Settlement Agreement.                   On February 12,

2016, the previously assigned judge held a hearing on the enforceability

of the settlement. There, the law firm indicated for the first time that it

was agreeable to the plaintiffs’ June 5 language that required only “the

parties” to keep the settlement confidential. At the same time, the law

firm argued this language would also be binding on the plaintiffs’

attorney.   Meanwhile, plaintiffs’ counsel indicated that he would agree

only to language restricting him from disclosing the settlement amount.

      Troy Miller and Joleen Cox both testified at the hearing.              Miller

took the position that the parties had reached a settlement and that the

degree of confidentiality desired by the law firm was typical in a legal

malpractice case. Yet he was not able to identify any point where the

parties in this case had come to agreement on confidentiality, and he

acknowledged       that    confidentiality   was   a   “material”   term    of    the

settlement.     Cox testified that she wanted to be able to tell her

grandchildren      about    the   settlement.      She   also   expressed        some

dissatisfaction with the tax consequences of the settlement. She further

testified that there had been no agreement between the parties on

confidentiality.

      Thereafter, the court filed a written ruling determining that a

binding settlement had been reached by the parties, and it enforced that

settlement. The court reasoned,

      [T]he parties to this litigation reached a settlement of their
      dispute with sufficient specificity to make it binding upon
      them. They agreed to confidentiality. Both attorneys to this
      litigation are experienced litigators who have entered into
      confidentiality clauses in the past. It is the norm that
      confidentiality agreement[s] would be binding on the parties
      and counsel. That requirement is a common term of such
      agreements. Counsel for plaintiff cannot now change the
      rules and argue that the agreement should not be binding on
                                         10
       him in specific language in an agreement.                The [parties’]
       agreement of settlement shall be enforced.

       The court further concluded that the confidentiality language in

the settlement should be drawn from the June 5 language that had been

conditionally transmitted by Joensen and originally proposed by

Harding. The court interpreted this confidentiality provision as imposing

confidentiality not only on the parties themselves, but also on “their

attorneys as is common in the industry.” 2
       F. The Coxes’ Appeal. The Coxes appealed, and we retained the

appeal. The Coxes argue that the district court erred in enforcing the

settlement agreement because there was no “meeting of the minds”

concerning     the   confidentiality    provision     to   be    included   therein.

Additionally, the Coxes contend that the confidentiality provision, as

interpreted by the district court, violates Harding’s obligations under the

Iowa Rules of Professional Conduct. The Coxes also maintain that the

district court erred in sealing court documents related to the alleged

settlement and in failing to arrange for an out-of-district judge to preside

over the case.

       II. Standard of Review.

       Both parties agree that we should review the court’s determination

of a binding settlement for correction of errors at law. The district court

ruled on objections during the course of the hearing on this matter.

Therefore, our standard of review will be for errors at law. However, as

we discuss below, our decision concerning enforceability of the

settlement does not turn on disputed facts.            See Wende v. Orv Rocker

Ford Lincoln Mercury, Inc., 530 N.W.2d 92, 94–95 (Iowa Ct. App. 1995).


       2As  a result of the court’s enforcement of the settlement agreement, the court
did not rule on the pending motion for summary judgment.
                                    11

      We also review claims involving the interpretation of our court

rules for correction of errors at law. State v. Kukowski, 704 N.W.2d 687,

690–91 (Iowa 2005).

      Generally, a court’s decision to seal court records and a decision to

deny recusal are both reviewed for abuse of discretion.         See In re

Marriage of Rosenberry, 603 N.W.2d 606, 611–12 (Iowa 1999); State v.

Millsap, 704 N.W.2d 426, 432 (Iowa 2005).

      III. Analysis.

      A. Enforceability of the Settlement Agreement. We must first

determine whether a valid and enforceable settlement agreement existed

between the Coxes and the defendant law firm. “We have long held that

voluntary settlements of legal disputes should be encouraged, with the

terms of settlements not inordinately scrutinized.” Wright v. Scott, 410

N.W.2d 247, 249 (Iowa 1987); see also 15A C.J.S. Compromise and

Settlement § 21, at 96 (2012) (“[O]ral settlement agreements are binding

so long as there is an offer, an acceptance, and a meeting of the minds

regarding the terms of the agreement.”).         Nonetheless, settlement

agreements “are essentially contracts, and general principles of contract

law apply to their creation and interpretation.”    Sierra Club v. Wayne

Weber LLC, 689 N.W.2d 696, 702 (Iowa 2004); accord Wright, 410 N.W.2d

at 249.

      Here, the Coxes maintain that no settlement agreement ever

existed because there was no mutual assent concerning the agreement’s

confidentiality provisions. “In order to be bound, the contracting parties

[to a settlement agreement] must manifest their mutual assent to the

terms sought to be enforced.” Sierra Club, 689 N.W.2d at 702; cf. Schaer

v. Webster County, 644 N.W.2d 327, 338 (Iowa 2002) (“For a contract to

be valid, the parties must express mutual assent to the terms of the
                                      12

contract.”). “Mutual assent is present when it is clear from the objective

evidence that there has been a meeting of the minds.” Royal Indem. Co.

v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010).

      With these principles in mind, we cannot find that the parties ever

mutually assented to the same settlement agreement.            The back-and-

forth correspondence shows that the parties never got on the same page

as to the confidentiality provision to be included in that agreement.

      On June 4 and 5, Troy Miller (the claims adjuster), Tom Joensen

(the law firm’s attorney), and Marc Harding (the plaintiffs’ attorney),

exchanged numerous emails. In their last communications on the 5th,

Joensen sent Harding a form of settlement that included Harding’s

proposed confidentiality language and asked Harding to “[l]et us know if

you agree.”      Yet, both Joensen and Miller reminded Harding that the

settlement was still pending the law firm’s approval. See Istari Constr.,

Inc. v. City of Muscatine, 330 N.W.2d 798, 800 (Iowa 1983) (finding that

an award of a municipal contract conditioned on federal government

approval was not a binding contract).       Thus, as of June 5, there was

clearly no deal.

      Harding then went away from the office for approximately ten days.

When he returned on June 15, Harding communicated to Joensen that

the June 5 settlement was acceptable. However, at that point, the law

firm still had not accepted it. In fact, on June 16, Joensen sent Harding

“another version” of the settlement on behalf of the law firm, telling him,

“Your decision on whether you have your clients sign.” By sending a new

version, Joensen in effect terminated the pending June 5 offer.          See

Restatement (Second) of Contracts § 39(2), at 106 (Am. Law Inst. 1981)

(“An offeree’s power of acceptance is terminated by his making of a

counter-offer,     unless   the   offeror   has   manifested     a   contrary
                                       13

intention . . . .”). Regardless, Joensen clearly did not accept the June 5

proposal at that time. See Rick v. Sprague, 706 N.W.2d 717, 724 (Iowa

2005) (stating that “the acceptance must conform strictly to the offer in

all its conditions, without any deviation or condition whatever,” or

otherwise “there is no mutual assent and therefore no contract” (first

quoting Shell Oil Co. v. Kelinson, 158 N.W.2d 724, 728 (Iowa 1968)));

Baker v. Johnson County, 37 Iowa 186, 189 (1873) (“An offer by one party

assented to by the other will generally constitute a contract, but the

assent must comprehend the whole of the proposition.          It must be

exactly equal to its extent and terms, and must not qualify them by any

new matter.”); First Am. Bank v. Urbandale Laser Wash, LLC, 874 N.W.2d

650, 656 (Iowa Ct. App. 2015).

      On June 17, Harding again communicated his willingness to enter

into the June 5 proposal—but only that proposal. He set a deadline of 2

p.m. that day for acceptance.        No acceptance was communicated to

Harding by then.        To the contrary, the law firm made another

counterproposal.      Hence, Harding’s offer to enter into the June 5

agreement expired at 2 p.m. See Steele v. Northup, 259 Iowa 443, 449,

143 N.W.2d 302, 305 (1966) (“[T]he party making the offer may prescribe

the mode of acceptance, and to constitute a binding contract this method

must be followed.”); Ferrier v. Storer, 63 Iowa 484, 489, 19 N.W. 288,

289–90 (1884) (“The offer, unless sooner withdrawn, stands during the

time limited, or, if there is no express limitation, during a reasonable

time.”); Restatement (Second) of Contracts § 41(1), at 109 (“An offeree’s

power of acceptance is terminated at the time specified in the

offer . . . .”). The parties had no deal.

      Ruling otherwise, the district court found the parties “reached a

settlement of their dispute with sufficient specificity to make it binding
                                     14

upon them.”    The district court derived a settlement from the June 5

language that Harding had been willing to accept during the June 15

through June 17 time period but that the law firm had been unwilling to

accept during that timeframe. That language by its terms bound only

the parties to confidentiality. Yet the court nonetheless found that that

language required both the parties and the attorneys to keep the

existence and terms of the settlement confidential—the outcome desired

by the law firm but not by plaintiffs’ counsel.

      In other words, the district court opted for the plaintiffs’ language

that the defendant had rejected, but then interpreted it as having the

same effect as the defendant’s language that the plaintiffs had rejected.

While this is an elegant finesse, we do not believe contract law permits it.

      We respectfully disagree with the district court’s analysis, which

we believe conflates three distinct concepts: (1) definiteness, (2) contract

interpretation, and (3) offer and acceptance.     The threshold issue that

matters here is whether there was mutual assent, i.e., offer and

acceptance. “For a contract to be valid, the parties must express mutual

assent to the terms of the contract.”        Schaer, 644 N.W.2d at 338.

Whether one ultimately interprets Harding’s June 5 language as having

the same legal effect as the law firm’s June 16 language is a separate

question from whether the parties mutually assented to either version.

They didn’t, and at the time both sides believed the two versions were

materially different.

      The fact that the law firm was willing to agree to the June 5

language months later—i.e., at the February 12, 2016 hearing—also does

not establish a binding contract.         By then, plaintiffs’ deadline for

acceptance had long passed and plaintiffs were asking for a trial setting.
                                    15

To put it another way, the parties’ willingness to agree to the same thing

but at different times is not enough to establish a meeting of the minds.

      Nor is the issue here one of definiteness.        If the parties had

reached a settlement that simply omitted any reference to confidentiality,

then it might have been possible for the court to fill in a term after the

fact—especially a reasonable, standard provision if such existed.       See

Restatement (Second) of Contracts § 204, at 96–97 (“When the parties to

a bargain sufficiently defined to be a contract have not agreed with

respect to a term which is essential to a determination of their rights and

duties, a term which is reasonable in the circumstances is supplied by

the court.”); see also Shelby Cty. Cookers, L.L.C. v. Utility Consultants

Int’l, Inc., 857 N.W.2d 186, 191–92 (Iowa 2014).       Here, however, the

parties’ negotiations in June 2015 included confidentiality.       Yet, the

parties never got to consensus.

      B. Ethical Objection to the Settlement Agreement.            Because

we find there was no binding settlement agreement, we decline to

consider whether the confidentiality provision in the settlement ordered

by the district court would result in a violation of Iowa Rule of

Professional Conduct 32:5.6.

      C. Sealing Court Documents.          Next, the Coxes contend the

district court abused its discretion in sealing portions of the court record

relating to the mediation and follow-up settlement negotiations.

      In several cases, we have applied the Open Records Act to the

judicial branch.   See Iowa Code § 22.1(3)(a) (2017) (defining “public

records” to include “all records, documents, tape, or other information,

stored or preserved in any medium, of or belonging to this state . . . or

any branch [of state government]”); In re Langholz, 887 N.W.2d 770, 776–

77 (Iowa 2016) (applying the Open Records Act to court records of a
                                     16

particular case); Judicial Branch v. Iowa Dist. Ct., 800 N.W.2d 569, 575

(Iowa 2011) (holding that court dockets are subject to the Open Records

Act); Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493,

501 (Iowa 1976) (holding “a jury list is a public record”). However, the

Open Records Act also includes over sixty types of records exempted

from disclosure. Langholz, 887 N.W.2d at 776; see Iowa Code § 22.7.

      Notably, the Act generally exempts “[m]ediation communications as

defined in section 679C.102.”        Iowa Code § 22.7(37).     That statute

defines “mediation communication” as any statement, written or oral,

“that occurs during a mediation or is made for purposes of considering,

conducting, participating in, initiating, continuing, or reconvening a

mediation.” Id. § 679C.102(2) (emphasis added). Such communications

are privileged, see id. § 679C.104(2), and are “not subject to discovery or

admissible in evidence in a proceeding unless the privilege is waived or

precluded.” Id. § 679C.104(1). Further, mediation communications “are

confidential to the extent agreed to by the parties or provided by other

law or rule of this state.” Id. § 679C.108.

      Hence, when mediation-related documents become part of the

court record, such as when there is a dispute whether the mediation led

to an actual settlement, we believe the district court can seal them. The

purpose of the privilege associated with mediation, when read in

conjunction with the legislature’s broad definition of “communications”

for purposes of chapter 679C, is clear: Parties should feel free to privately

discuss the merits of pending litigation without those discussions

reemerging in open court if the mediation fails. See Wright, 410 N.W.2d

at 249 (“The law favors settlement of controversies.”); see also Miller v.

Component    Homes,    Inc.,   356   N.W.2d   213,   215–16    (Iowa   1984)

(recognizing that a person is entitled to “buy his peace” during settlement
                                         17

negotiations “without danger of being prejudiced in case his effort should

fail”).    Just because parties to mediation waive the privilege shielding

those communications from judicial scrutiny does not mean those

communications become public.           See Olam v. Congress Mortg. Co., 68

F. Supp. 2d 1110, 1129–39 (N.D. Cal. 1999) (discussing thoroughly the

importance of mediation communications and concluding that initially

accepting evidence in camera or under seal allows the court to “make a

refined and reliable judgment” on the use of that evidence).

          Here, the parties engaged in face-to-face mediation on May 29 and

thereafter agreed to continue negotiating with the assistance of the

mediator. 3     Once those negotiations fell through, the law firm filed its

motion to enforce the settlement agreement and the Coxes resisted. In

other words, there arose an issue whether the parties reached a

mediated settlement of the Coxes’ claim.             As a result, both parties

introduced, as exhibits, many documents purporting to show the

outcome of the mediation process. Given this background, the district

court did not abuse its discretion in sealing the court record as to any

pleadings, documents, or exhibits related to the mediation and follow-up

negotiations.
          Moreover, the main point of contention in this case was whether

the settlement agreement included a confidentiality provision and, if so,

the scope of that provision. Under these circumstances, it was certainly

reasonable for the court to seal the record while it determined whether

the agreement was enforceable. See LEAP Sys., Inc. v. MoneyTrax, Inc.,

638 F.3d 216, 222–23 (3d Cir. 2011). We are also unpersuaded by the

        3Although there is no evidence that the mediator actively participated in the

follow-up discussions, he was included in many of the emails exchanged between
Miller, Joensen, and Harding following the mediation.
                                      18

Coxes’ argument on appeal that the documents should have been

publicly available because the law firm had already “opened the door” by

filing its motion to enforce the settlement.      If any party reasonably

believes a confidential settlement was reached, and the opposing party

disagrees, the first party should not be deterred from bringing the matter

to the court’s attention.

      D. Appointment of an Out-of-District Judge. Lastly, the Coxes

argue that the district court erred in not arranging for an out-of-district

judge to preside over the case.

      “The supreme court by and through the chief justice may at any

time order . . . the transfer of active judges and other court personnel

from one judicial district to another . . . .” Iowa Ct. R. 22.2. Conversely,

the chief judge of a particular judicial district “may assign and monitor

cases within the district,” including the designation of presiding judges

“within their respective districts.” Id. rs. 22.5, .7. As the Coxes point

out, often as a practical matter the chief judge of a district will request

the chief justice of our court to specially assign a legal malpractice case

to a judge from another district.     Therefore, in this case, we turn our

attention to the hearing that was conducted on the Coxes’ request before

the chief judge of the First Judicial District.

      At that hearing, the Coxes presented virtually no evidence to

support the assignment of an out-of-district judge to preside over the

case, other than the fact that it had been done in other cases.

Specifically, Harding stated,

      [W]hy not go ahead and bring in another judge. The problem
      is, I think that if there are rulings that are made in favor of
      the plaintiff, then there’s going to be the perception that,
      well, the judge is bending over backwards to go ahead and
      help the plaintiff . . . and to avoid any appearance of
      impropriety, anything of that sort. On the other hand, if
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       there are decisions that are made in favor of the defense,
       then it’s going to raise questions of, well, was there some
       bias, or what was the situation there?

The Coxes did point out that the law firm practices primarily in Black

Hawk County and further, that one of its former partners is now a judge

in the First Judicial District.

       On this record, the chief judge did not abuse her discretion in

declining to ask for an out-of-district judge.               The Coxes essentially

propose a per se rule to govern cases of legal malpractice. Under this

rule, a judge from anywhere in the judicial district where the defendant

law firm principally practices cannot hear a legal malpractice case. The

Coxes cite no authority in support of such a per se rule. 4 Here, the chief
judge noted in her order that she had already considered the law firm’s

situs in Black Hawk County when she appointed a Chickasaw County

judge to preside over the case.

       It is also noteworthy that the Coxes raised no objection to the

identity of the presiding judge at the time he was designated.                    Their

objection came only after he had been hearing the case for approximately

nine months and had ruled against the Coxes on the motion to seal.5


        4At least two other jurisdictions have concluded that a judge is not prohibited

from presiding over a legal malpractice case merely because the defendant law firm has
tried cases in that judicial district in the past. See Ex parte Atchley, 936 So. 2d 513,
517 (Ala. 2006); Young v. Govier & Milone, L.P., 835 N.W.2d 684, 697–98 (Neb. 2013).
       5On  appeal, the Coxes also argue that the district court demonstrated “clear[]
bias” against them during the proceedings on the motion to enforce the settlement. The
Coxes characterize several remarks made by the district court during those proceedings
as a refusal to consider their arguments, having “a very low opinion” of the Coxes, and
having an “animus” toward Harding. However, after reviewing the record—including the
context in which these remarks were made—we do not believe the district court
exhibited bias or prejudice.
       Throughout the three-and-a-half hour hearing on the motion to enforce the
settlement agreement, it is clear that the court’s comments were primarily aimed at
probing the parties’ positions in a good-faith effort to reach a decision. Recusal is not
required based on anything the court said at the February 2016 hearing.
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See Citizens First Nat’l Bank v. Hoyt, 297 N.W.2d 329, 333–34 (Iowa

1980) (concluding that a party can impliedly waive the issue of judicial

disqualification).

      So long as adequate resources are available, we have no problem

with assigning legal malpractice cases to out-of-district judges at the

outset of the litigation as a precautionary measure. We simply hold that

recusal was not required here.

      IV. Conclusion.

      For the foregoing reasons, we reverse the order of the district court

enforcing a settlement agreement between the Coxes and the law firm, we

affirm the orders granting sealing of the settlement-related filings and

denying appointment of an out-of-district judge, and we remand for

further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      All justices concur except Zager, J., who takes no part.
