Court Holds Outside-Counsel Billing Invoices Need not be Disclosed under Public Records Act
by Derek P. Cole on April 27, 2015
posted in Public Records Act,
In a ruling that probably surprised many people, the Los Angeles-based Second District Court of Appeal held this month that attorney billing records need not be produced under the California Public Records Act (“CPRA”). The appellate court overturned a lower court ruling that found outside counsels’ litigation-billing invoices were public records that must be disclosed.
In County of Los Angeles Board of Supervisors v. Superior Court, a lawsuit that originated with a public-records request made by the American Civil Liberties Union (“ACLU”), the court found itself caught between competing interests. Observing that the ACLU’s request implicated both the interest in candid communication underlying the attorney-client privilege and the governmental-transparency interest served by the CPRA, the court was forced to pick which interest was weightier. In choosing the former interest, it relied on statutory interpretation.
The ACLU Lawsuit
In the case, the ACLU sought billing records outside counsel had sent the county in nine lawsuits involving violence in county-operated jails. The ACLU believed the records would shed light on “scorched-earth” litigation tactics in which counsel had engaged.
The County agreed to provide records for three of the cases, which were no longer pending at the time of the records request. But as to the other cases, it argued that producing records with description of the work performed, time spent, and amount of charges would disclose information protected by the attorney-client privilege.
The Court’s Holding and Reasoning
The Court of Appeal agreed with the County. Its conclusion was based on a technical reading of California statutes. Specifically, the court interpreted California Evidence Code section 952, which defines what communications between lawyers and their clients are confidential. Section 952 defines confidential communications through a single but lengthy sentence with multiple clauses. The last clause states that confidential communications include “a legal opinion formed and the advice given by the lawyer in the course of [the attorney-client] relationship.”
The problem with the ACLU’s interpretation, the court concluded, was that it read the last clause as a mandatory condition for invoking the attorney-client privilege. Because section 952 specifies only that confidential communications “include” communications expressing legal opinions and offering advice, such communications are only one type of document that may be protected by the privilege. The court noted that the general language of section 952, near its beginning, states that confidential communications are those that are “transmitted between a client and his or her lawyer … in confidence …” Thus, the key attribute that makes a record privileged its whether it was transmitted between the lawyer and client with the expectation of confidentiality.
In the case before it, the court found that the billing records were transmitted to the county with such an expectation. A declaration of a supervising attorney within the County Counsel’s department attested to the expectation of confidentiality. The ACLU did not submit any contradictory evidence.
Are All Records Regarding Public Agency Litigation Confidential?
Does the Court’s ruling mean that all records regarding outside counsel are confidential? In the author’s opinion, no.
The specific issue before the court was whether billing records outside counsel had sent the county were confidential. The ACLU had conceded that some of the information in the billing records—especially that which described advice counsel had given—could properly be redacted. Most likely, the ACLU was interested in obtaining information concerning the number of hours counsel had charged and the specific amounts counsel had billed during the litigation.
Although billing records would be the best source for obtaining such information, it still would have been possible to obtain the information through other sources. For instance, the county generates warrants (checks) for payments on law firm invoices and county financial statements would keep track of all payments made to law firm vendors. Although such records would have provided the desired information more indirectly, they may still have given the ACLU the information it needed to document its claims.
Assuming the court’s holding stands (a petition for review to the State Supreme Court is likely), agencies can expect parties making CPRA requests to seek more indirect records regarding outside litigation. The court itself noted in a footnote that such information would likely be subject to disclosure if available in other formats. Surely, the parties who would request litigation records will take notice.