Daily Blast April 13, 2015

The Court of Appeal, Second Appellate District, Division Three (LA), issued an opinion in County of Los Angeles Board Of Supervisors v. Superior Court of Los Angeles County(Apr. 13, 2015, B257230) __ Cal.App.4th ___, analyzing “whether billing invoices sent by an attorney to a client must be disclosed pursuant to the California Public Records Act (CPRA), or whether they are protected by the attorney-client privilege.” (Slip opn., p. 2.) The court held that “[because] the invoices are confidential communications within the meaning of Evidence Code section 952, they are exempt from disclosure under Government Code section 6254, subdivision (k).” (Ibid.)

In the wake of several publicized investigations on excessive force on inmates, the ACLU of Southern California submitted a CPRA request to the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel for invoices specifying the amounts that the County of Los Angeles had been billed by any law firm in connection with nine different lawsuits. (Slip opn., p. 2.) The ACLU contended that certain law firms may have engaged in “scorched earth litigation tactics” and dragged out cases even when a settlement was likely in the best interest of the County. According to the ACLU, the public has a right and interest in ensuring the transparent and efficient use of taxpayer money. (Id. at p. 3.) The County agreed to produce the requested documents for three lawsuits, which were no longer pending, with appropriate redactions. (Ibid.) It declined to provide billing statements for the remaining six lawsuits, which were still pending. Over the County’s attorney-client privilege objection, the trial court order production of all billing records redacted for an attorney’s legal opinion, advice, mental impressions and theories of the case. (Id. at p. 4.) The County petitioned the Court of Appeal for a writ of mandate. (Id. at p. 5.)

The Court of Appeal granted the County’s petition for writ of mandate. (Slip opn., p. 24.) In analyzing whether the billing statements were covered by the attorney-client privilege, the court held that “[a] communication between attorney and client, arising in the course of representation for which the client sought legal advice, need not include a legal opinion or advice to qualify as a privileged communication.” (Id. at p. 12.) According to the court, “the proper focus in the privilege inquiry is not whether the communication contains an attorney’s opinion or advice, but whether the relationship is one of attorney-client and whether the communication was confidentially transmitted in the course of that relationship.” (Id. at p. 19.) In this case, it was undisputed that the County engaged the law firms to represent it in the lawsuit and that the invoices arose from those very lawsuits. Thus, the court held that “the invoices were confidential communications between attorney and client within the meaning of Evidence Code section 952.” (Id. at pp. 20-21.)

As to the application to attorney fee motions, the court noted that the Evidence Code provides an exception to the attorney-client privilege when there has been a breach of duty arising out of the lawyer-client relationship. (Slip opn., p. 23.) Additionally, detailed billing statements are not always necessary to support a fee award. Further, a client can waive the attorney-client privilege, allowing his or her attorneys to provide detailed time records when necessary to support a request for attorney fees. (Id. at pp. 23-24.) Thus, the court rejected the ACLU’s argument that the court’s holding would “wreak havoc” with the procedures for seeking attorney fees.