01.05.2017

|

Updates

In a 4-3 decision, the California Supreme Court ruled that attorney invoices submitted to public agencies are not categorically exempt from disclosure under the California Public Records Act. Los Angeles County Board of Supervisors v. Superior Court (Case No. S226645, Dec. 29, 2016). The Court ruled that while public agencies may withhold from disclosure information in attorney invoices that relates to legal work and advice in ongoing matters, agencies may have to disclose information in invoices regarding work on closed matters if the information does not reveal confidential legal advice or strategy.

The decision has important implications for California public agencies and their attorneys and enhances the ability to obtain disclosure of legal invoices for past matters. The impact of the decision goes far beyond the facts of the dispute, which involved litigation against Los Angeles County based on claims of excessive force, as the Court’s reasoning broadly applies where outside attorneys work for governmental agencies either in an advisory or litigation role.

Three of the justices dissented, claiming that the majority opinion unduly limits the ability of public agencies to keep outside legal invoices confidential and thereby undermines the fundamental protections afforded by the attorney-client privilege.   

Background

The ACLU of Southern California and a local citizen submitted Public Records Act requests to the Los Angeles County Board of Supervisors and the Office of the County Counsel for invoices from outside law firms for work related to nine lawsuits alleging excessive force against jail inmates. The county produced invoices for three lawsuits that were no longer pending, with attorney-client privilege and work product redacted, but the county refused to produce invoices for the six lawsuits that were ongoing. The county claimed that the invoices for work performed by outside counsel in pending litigation were exempt from disclosure.   

The county relied on two provisions of the Public Records Act: (1) Government Code section 6254(k), which exempts from disclosure records subject to the attorney-client privilege; and (2) Government Code section 6255(a), a catchall provision that allows a public agency to withhold a record if the public interest favors nondisclosure. In this case, the Supreme Court considered only the scope of the exemption in section 6254(k) under the attorney-client privilege.

Majority Decision

In holding that invoices from outside counsel are not categorically exempt from disclosure under the Public Records Act, the Court emphasized that under section 952 of the California Evidence Code, the attorney-client privilege protects “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence . . . and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Based on this definition, the Court reasoned that “the privilege does not apply to every single communication transmitted confidentially between lawyer and client. Rather, the heartland of the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation.” Applying this reasoning to legal invoices, the Court explained that “while invoices may convey some very general information about the process through which a client obtains legal advice, their purpose is to ensure proper payment for services rendered,” not to deliver legal advice.

The Court then made a distinction between invoices in active and closed matters. For active matters, the attorney-client privilege “encompasses everything in an invoice,” since disclosing even the mere amount of the fees could reveal the timing and magnitude of the public agency’s investigative efforts as well as the litigation strategy.   

But, the Court emphasized, the same reasoning does not apply to legal matters that “concluded long ago.” With respect to these matters, the question is whether the information subject to disclosure would reveal anything about the substance of the legal consultation and strategy. In other words, the scope of the privilege “turns on content and purpose,” not the form of the attorney-client communication. Thus, invoices for past matters may be subject to disclosure, although the agency may redact information that reveals confidential legal advice.    

Dissent

In a vigorous dissent authored by Justice Werdegar, three of the justices argued that the majority misread the pertinent provisions of the Evidence Code and ignored prior case law. According to the dissent, the attorney-client privilege covers all confidential communications between attorney and client, regardless of the purpose of the communication. First, the dissent argued, the statutory text did not support the majority’s conclusion that the attorney-client privilege protects only communications made for the purpose of delivering legal advice or representation. Second, the dissent claimed that the majority’s decision was at odds with the Court’s prior decision in Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 742 (2009), which held that attorney-client privilege covers all confidential communications between attorney and client when the lawyer acts as a legal representative, regardless of the content of the communication. Third, the dissent posited that compelling disclosure of lawyer invoices on past matters conflicted with the traditional understanding that the attorney-client privilege survives the conclusion of litigation.

Importance of the Ruling

The decision has significant ramifications for California public agencies and their attorneys, as it will limit the ability to protect legal invoices from public disclosure after the relevant legal matter has concluded. The decision likely will lead to increased Public Records Act requests for attorney invoices and it may affect how such invoices are drafted and submitted to public agencies.   

© 2017 Perkins Coie LLP


 

Sign up for the latest legal news and insights  >