Daily Blast January 4, 2017

Last week, a divided California Supreme Court issued an opinion addressing “whether invoices for legal services transmitted to a government agency by outside counsel are categorically protected by the attorney-client privilege and therefore exempt from disclosure under the [Public Records Act (“PRA”)].” (Slip. Opn., p. 4.) In Los Angeles County Board of Supervisors v. Superior Court of Los Angeles County (Dec. 29, 2016, S226645) __ Cal.5th __, the court held that “the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure.”  (Id. at p. 1.) However, invoices for pending or active matters are protected. (Id. at pp. 1-2.)

The American Civil Liberties Union of Southern California (ACLU) submitted PRA requests to the county for invoices billed by any outside law firm in connection with nine lawsuits. The county released redacted invoices related to three resolved lawsuits but declined to provide invoices related to the six pending suits, claiming attorney-client privilege. (Slip opn., p. 2.) The superior court granted the ACLU’s subsequent writ of mandate, holding that the county failed to show that the invoices were attorney-client privileged communications. (Id. at p. 3.) The county filed a writ of mandate to the Court of Appeal, which vacated the superior court’s order. (Ibid.) It held that invoices are confidential communications under Evidence Code section 952, exempt from disclosure under Government Code section 6254, subdivision (k). (Ibid.) The California Supreme Court granted review. (Id. at p. 4.)

The Supreme Court reversed, holding that a public agency’s invoices for legal services are not categorically privileged. (Slip opn., p. 20.) Government Code section 6254, subdivision (k), lists categories of records exempt from PRA disclosure. (Id. at pp. 5-6.) However, “[a]s with any of the PRA’s statutory exemptions, ‘the fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document.’” (Id. at p. 6.) Evidence Code section 952, which defines “confidential communications” as those that occur “in the course of [the attorney-client relationship],” limits the privilege to attorney-client communications that “bear some relationship to the attorney’s provision of legal consultation.” (Id. at p. 10.) Thus, “the contents of an invoice are privileged only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose.” (Id. at p. 20.) Any invoice reflecting work in ongoing litigation is privileged because it risks exposing information regarding legal consultation. (Ibid.) However, invoices from “long-completed” matters “do[] not always reveal the substance of legal consultation.” (Id. at p. 15.) The court reversed the Court of Appeal’s judgment and remanded the case for further proceedings. (Ibid.)

Justice Werdegar, joined by Chief Justice Cantil-Sakauye and Justice Corrigan, dissented. Evidence code section 952 defines “confidential communication” as “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.” (Diss. opn., p. 2.) The dissent urged that the majority’s decision to consider a communication’s purpose is an additional, nonstatutory element to the definition, which is unsupported by law. (Id. at p. 4.) Further, the notion that the attorney-client privilege is different for pending versus concluded litigation is contrary to legal authority indicating that the privilege continues even after the relationship ends. (Id. at pp. 7-8.)  

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