On December 29, 2016, the California Supreme Court issued a decision in Los Angeles County Board of Supervisors, et al. v. Superior Court, No. S226645 (Cal. Supreme Ct. Dec. 29, 2016), ruling that the attorney-client privilege does not categorically shield all billing invoices from California Public Records Act (“CPRA”) requests. Following this ruling, public agencies receiving CPRA requests for billing invoices must carefully review the invoices to determine which portions are exempt and which must be disclosed.

Background

On July 1, 2013, the American Civil Liberties Union of Southern California (the “ACLU”) submitted a CPRA request to the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel (collectively, the “County”). The ACLU sought invoices specifying the amounts that any law firm billed the County regarding nine different lawsuits alleging excessive force against jail inmates in the Los Angeles County jail system. The County produced copies of the invoices regarding three of the lawsuits, as they were no longer pending. However, the County refused to provide invoices for the remaining six lawsuits, claiming the invoices were protected from disclosure under attorney-client privilege.

The County argued that the invoices were confidential attorney-client communications, and were therefore exempt from CPRA disclosure. The ACLU argued that it was entitled to the invoices because it believed that the law firms retained to defend the County engaged in litigation tactics which prolonged the excessive force suits, when a settlement was either likely or in the best interest of the County. The ACLU argued the invoices would allow the public, which has a right and interest in ensuring the transparent and efficient use of taxpayer money, to determine if such tactics were a waste of taxpayer money. The ACLU also asserted that treating invoices as sometimes non-privileged would not undermine the fundamental purpose of the attorney-client privilege, which is to promote frank discussion between the client and attorney. The ACLU explained that merely sending invoices to a client does not “further the purpose of legal representation,” and that invoices furthered a separate business purpose incidental to the attorney-client relationship.

When Does the Attorney-Client Privilege Apply?

The Court reiterated that the attorney-client privilege only protects communications made for the purpose of seeking or delivering the attorney’s legal advice or representation. Therefore, certain communications between the attorney and client, which do not further this purpose, would not be covered under the attorney-client privilege.

Invoices Are Not Categorically Privileged

The Court was unconvinced by the County’s argument that the invoices were categorically privileged because the invoices may provide insight as to strategy regarding pending litigation, or how cases may be litigated in the future. Rather, the Court ruled that invoices are generally not communicated for the purpose of obtaining legal consultation. This is because the dominant purpose of invoices is to facilitate the payment of attorneys’ fees on a regular basis, and is a part of normal recordkeeping.

However, the Court recognized that invoices may sometimes contain attorney-client privileged information. One example is when the invoice is being used to inform the client of the nature or amount of work occurring in connection with a pending legal issue. The Court also stated that the amount of aggregate fees regarding pending litigation may fall within the attorney-client privilege, because it may reveal the opposition’s impending filing or concerns about a recent event which might impact the litigation. In these cases, the government agency must disclose any reasonably segregable portion of a public record after deleting the portions that fall under the attorney-client privilege or other exemptions under law.

Conclusion

The Los Angeles County case highlights the importance of carefully reviewing and redacting billing invoices to exclude only those portions that fall under the attorney-client privilege. Without a categorical exemption, government agencies must evaluate whether billing invoices contain communication that constitutes legal representation and advice.

While each billing invoice must be considered on a case by case basis, the Los Angeles County case provides some guidance on determining whether the privilege applies. Invoices pertaining to pending litigation, which informs the client of the nature or amount of work regarding the suit, will likely be exempt from CPRA disclosure. However, litigation which is complete or closed should be disclosed if requested under the CPRA.

If you have any questions regarding the Los Angeles County decision, please contact Doug White at (916) 468-0947 or doug@whitebrennerllp.com, Nubia Goldstein at (916) 468-0946 or nubia@whitebrennerllp.com, or Elaine Won at (916) 468-0948 or elaine@whitebrennerllp.com.