CA Supreme Court Rules Attorney-Client Privilege Does Not Automatically Protect Attorney Billing Invoices from CPRA Disclosure
The California Supreme Court held that billing invoices sent by an attorney to a public agency client are not automatically protected in their entirety by the attorney-client privilege and, therefore, portions of the invoices may be subject to disclosure under the California Public Records Act (“CPRA,” Government Code §§ 6250 et seq.). (Los Angeles County Board of Supervisors v. Superior Court, No. S226645 (Cal. Supreme Ct. Dec. 29, 2016).)
The case arose out of a 2013 public records request submitted by the local chapter of the ACLU to the County of Los Angeles. The request sought billing invoices received by the County from outside law firms in connection with lawsuits alleging excessive force against inmates in the County’s jail system. The County refused to provide invoices in pending cases by arguing that the invoices were privileged attorney-client communications. Following the County’s refusal, the ACLU sought a court order compelling disclosure.
Generally, under the CPRA, public agencies must disclose any reasonably segregable portions of public records that are not exempt from disclosure or privileged under state or federal law. Applicable privileges may include, but are not limited to, the attorney-client privilege and other privileges identified in the California Evidence Code.
In the Los Angeles County case, the trial court concluded that the billing invoices were not protected by the attorney-client privilege. The appellate court disagreed, concluding that the invoices were privileged in their entirety because they were confidential communications made between an attorney and a client in the course of an attorney-client relationship.
In a close 4-3 decision, the California Supreme Court reversed the appellate court’s decision. Interpreting relevant Evidence Code provisions, a majority of the Court concluded that the privilege “only protects communications between an attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation.” Because the primary purpose of invoices is to collect fees rather than provide legal consultation, the majority explained, invoices are not automatically protected by the attorney-client privilege.
The Court also explained that portions of an invoice may still be protected by the privilege. According to the Court, the “inquiry turns on the link between the content of the communication and the types of communication that the attorney-client privilege was designed to keep confidential”-that is, legal representation and advice.
The Court found that the timing of the request could be critical. The Court stated: “[I]nvoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege. The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters.” However, the Court explained that the protection of certain billing information may diminish over time. For example, although disclosing billing amounts during litigation could reveal an impending filing or a response to new information in the case, disclosing billing amounts in long-concluded matters reveals little or nothing of substance about the legal consultation and therefore would no longer be protected by the privilege.
Ultimately, the Los Angeles County case will pose a challenge to public agencies in determining the extent to which individual billing invoices and similar communications are subject to disclosure under the CPRA. The case underscores the importance of closely reviewing records for purposes of CPRA disclosure and carefully determining whether a record reflects legal consultations between an attorney and client.