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Invoices for Legal Services and the California Public Records Act

Client Alert

On December 29, 2016, the Supreme Court of California issued its decision in Los Angeles County Board of Supervisors v. Superior Court (ACLU of Southern California), Case No. S226645. The Court held invoices for legal services transmitted to a governmental agency by outside counsel are not categorically exempt from disclosure under California Public Records Act (“PRA”). However, the contents of a legal invoice are privileged to the extent they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose. The latter category includes protecting, in their entirety, invoices that reflect work in active and ongoing litigation matters.

Summary of Decision

A. Background

In 2013, following several publicized inquiries into allegations of excessive force against inmates housed in the Los Angeles County jail system, the ACLU of Southern California (“ACLU”) submitted a PRA request to the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel (“County”). The request sought invoices specifying the amounts that the County had been billed by any law firm in connection with nine different lawsuits alleging excessive force against jail inmates.

The County agreed to produce copies of the requested invoices for three of the lawsuits that were no longer pending, with attorney-client privilege and work product information redacted but declined to produce invoices for the remaining six lawsuits that were still pending, claiming “the detailed description, timing, and amount of attorney work performed, which communicates to the client and discloses attorney strategy, tactics, and thought processes and analysis” were privileged under the Evidence Code and exempt from disclosure under Government Code section 6254(k), which provides that records exempt under federal or state law, including provisions of the Evidence Code related to privilege are also exempt under the PRA.

Evidence Code section 950 et seq. describes the attorney-client privilege. The attorney-client privilege protects confidential communications between the client and lawyer. (Evidence Code section 954.) “Confidential communications,” in summary, is defined as information transmitted between a client and his or her lawyer in the course of the attorney-client relationship for the purpose of legal consultation, including legal opinions and advice given by the lawyer in the course of that relationship. (Evidence Code section 952.)

The ACLU filed a petition for writ of mandate, seeking to compel the County to disclose invoices for all nine lawsuits. The trial court granted ACLU’s petition and held the County failed to show the invoices were attorney-client privileged communications and ordered the billing invoices for all nine lawsuits to be produced. The trial court allowed the County to redact the records to the extent they reflected an attorney’s legal opinion or advice, or revealed an attorney’s mental impressions or theories of the case. The County filed its own petition for writ of mandate in the Court of Appeal. Focusing on whether the information was transmitted within the course of an attorney-client relationship, the Court of Appeal granted the County’s petition and vacated the trial court’s order, finding the invoices to be confidential communications within the meaning of Evidence Code section 952, and thus exempt from disclosure under Government Code section 6254(k). The Supreme Court then granted review.

B. The Supreme Court’s Rulings on the Scope of the Attorney-Client Privilege as Applied to Legal Billing Invoices

The Supreme Court held invoices for legal services transmitted to a governmental agency by outside counsel are not categorically exempt from disclosure under the PRA. However, the contents of the invoice are privileged to the extent they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose. The latter category includes protecting invoices that reflect work in active and ongoing litigation.

The Court explained that invoices for legal services are generally not communicated for the purpose of legal consultation. Rather, they are communicated for the purpose of billing the client, and to the extent they have no other purpose or effect, fall outside the scope of an attorney’s professional representation. The Court relied in part on its decision in Costco v. Superior Court (2009) 47 Cal.4th 725, where the Court held that a confidential 22-page opinion letter sent from an attorney retained by Costco for advice to Costco did not need to be turned over because it was clearly privileged. The Court made a distinction between the opinion letter in Costco and the billing invoices at issue here, stating that unlike an opinion letter, a billing invoice is not made for the purposes of legal representation. However, the information contained within certain invoices may be within the scope of the attorney-client privilege.

The Court stated that to the extent the billing information is conveyed for the purpose of legal representation – perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue – “such information lies at the heartland of the attorney-client privilege.” Even aggregate figures describing the amount spent on continuing litigation may fall under the privilege. The Court goes on to conclude “when a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees.” The privilege turns on whether the invoices reveal anything about legal consultation.

It is important to note that although the focus of this case concerned whether billing invoices for litigation matters fell under attorney-client privilege, the Court uses broader language that suggests content of billing invoices related to any ongoing matter, whether litigation or not, would be exempt from disclosure under the PRA. For example, the Court states that the privilege encompasses everything in an invoice concerning a pending “legal matter.” According to the Court’s majority opinion, the attorney-client privilege arguably applies to the content of billing invoices concerning any ongoing legal matter, not just litigation.

For further information, please contact June S. Ailin or Nick Papajohn from Aleshire & Wynder, LLP at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.