HIGHLIGHTS:

  • The Supreme Court of California has held that California attorney-client privilege categorically protects attorney invoices for ongoing matters, but the degree of protection for concluded matters is substantially less certain.
  • The court's opinion in County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California) suggests that application of the privilege turns largely on the circumstances in which disclosure of the purportedly privileged information is sought. For example, disclosure of invoices during a pending matter may reveal strategy, whereas disclosure of the same information after conclusion of a matter may not.
  • The opinion represents a unique approach to resolving questions of attorney-client privilege, and it could have far-reaching implications.

Holland & Knight issued an alert in June 2015, written by Allison Martin Rhodes and Craig S. Weinstein, regarding an earlier California Court of Appeal ruling in this case. This alert provides an update after a December 2016 decision by the Supreme Court of California.

In County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California),1 the Supreme Court of California has held that the attorney-client privilege does not categorically apply to information in attorney invoices unless the underlying legal matter remains pending and active.

The opinion addresses a dispute between the American Civil Liberties Union (ACLU) and the County of Los Angeles over the ACLU's Public Records Act (PRA) request to access law firm invoices showing the amount that the county paid to defend lawsuits brought by inmates alleging jail violence. Though the county produced invoices for cases that were no longer pending, it refused to provide invoices for active lawsuits. The ACLU argued against application of the privilege because the purpose of an invoice is to secure payment for services, which is a function that is only incidental to the attorney-client relationship. The county took the position that invoices are categorically privileged, in part because they give a window into litigation strategies.

The Court's Decision

Prior to this opinion, the state's highest court had never definitively ruled on whether a lawyer's bill, or at least certain information therein, is privileged. In reaching its conclusion, the court interpreted and applied California Evidence Code Section 952. Based on an analysis of the text and context of Section 952, the court concluded that the privilege applies to communications that bear some relationship to the provision of legal consultation. The court then noted that "[i]nvoices for legal services are generally not communicated for the purpose of legal consultation."

Although the court offered little guidance for delineating when an invoice is or is not communicated for purposes of legal consultation, the court took a unique approach and announced a categorical distinction for invoices connected to ongoing matters, holding that, "[w]hen a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees."

In contrast, the court held that for legal matters concluded long ago, with no ongoing litigation to add context to the billing records, the bills "communicate little or nothing about the substance of legal consultation." The court did not address what result to expect if a matter is concluded but the content of the billing narratives remained pertinent to a client's expectation of confidentiality.

A dissenting opinion from Justice Kathryn Werdegar raised grave concerns about this holding, particularly with, in her words, the majority's "suggestion that the protective scope of the privilege somehow wanes with the termination of the subject litigation." She therefore cautioned that attorneys must now warn clients that previously privileged communications could now be forced into the open by interested parties following the conclusion of litigation.

Conclusion

Although the long-term impact of the opinion is yet to be seen, the immediate takeaway is that attorneys may take some comfort in the fact that billing records are privileged during pending matters. But the durability of the privilege after a matter is concluded is now an open question. As such, billing narratives should continue to reflect tasks, but lawyers should be circumspect about including actual legal advice or sensitive information.