A Closer Look at County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California)
- This is the first clear holding in California that protects invoices from disclosure under the attorney-client privilege because attorney invoices are confidential communications between attorney and client.
- California attorney-client privilege protects the transmission of confidential communications between attorney and client whether or not a particular communication contains legal opinion or advice to the client.
In an important new decision, the California Court of Appeal held in County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California)1 that attorney invoices are confidential in nature and are therefore protected from disclosure. Prior to this opinion, courts had taken inconsistent views on whether a lawyer’s bill is a privileged communication that should not be produced at all or should be subject to permissible redaction. In reversing the trial court’s ruling, the opinion takes a broad view of the privilege and notes that the defendant was able to establish the preliminary facts necessary to support application of the attorney-client privilege to its invoices with its attorneys under California law – i.e., that the communication was made in the course of an attorney-client relationship. In reaching this conclusion, the court interpreted and applied California Evidence Code section 952.
Public Policy and Legislative Intent Focused on Safeguarding Attorney-Client Confidentiality
The court relied heavily on the public policy and legislative intent of safeguarding the confidential relationships between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding legal matters. Because the defendant-client met its burden to show that the records were confidential communications between it and its attorney, the records were therefore protected from disclosure.
The plaintiff also argued that under Evidence Code section 952, the attorney-client privilege only extends to communications containing legal advice or opinion. The court rejected this argument based on its review of the legislative intent of section 952. The court held that the legislative intent was not limited to protecting communications that themselves reflect legal opinion or advice. The court also held that the fundamental purpose behind the attorney-client privilege would not be furthered if clients and attorneys were uncertain whether their communications contained sufficient opinion or advice to qualify as confidential communications. Citing the California Supreme Court’s holding in Costco Wholesale Corp v. Superior Court,2 the court held that the proper focus in the privilege inquiry is whether the relationship is one of attorney-client and whether the communication was confidentially transmitted – not whether the communication itself contains an attorney’s opinion or advice.
The court also added that this does not mean that all communications involving an attorney are automatically privileged or that the privilege protects information that is also available from a non-privileged source. Nonetheless, the invoices themselves are privileged.
As the court noted, this opinion is the first in California and to squarely decide whether an attorney’s billing invoices qualify as privileged communications under California Evidence Code section 952. The opinion is largely dependent upon the language of California Evidence Code section 952 and its legislative and judicial history. It therefore remains to be seen whether this holding will be followed in other states or when the Federal Rules of Evidence apply.