Tuesday, April 14, 2015
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C.A. Rules for County in Public Records Act Dispute With ACLU
Panel Overturns Order Requiring Disclosure of Invoices From Law Firms Defending Suits Over Jail Violence
By KENNETH OFGANG, Staff Writer
Invoices to Los Angeles County from the law firms defending it in suits regarding jail violence are exempt from disclosure under the California Public Records Act, the Court of Appeal for this district ruled yesterday.
Div. Three said Los Angeles Superior Court Judge Luis Lavin was wrong when he rejected the county’s contention that the documents are covered by the attorney-client privilege and thus exempt.
The ACLU and taxpayer Eric Preven filed suit two years ago after the county rejected their CPRA requests. They asked that the county disclose the invoices, as well as contracts between the county and various persons hired to oversee implementation of the recommendations of the Citizens’ Commission on Jail Violence.
Disclosure would aid in holding the Sheriff’s Department accountable for the conduct disclosed by the commission, which said top department personnel encouraged overly aggressive behavior by deputies, the plaintiffs argued.
Aldrich Opinion
Justice Richard Aldrich, however, writing for the Court of Appeal, said the county was entitled to rely on the act’s exemption for privileged communications, found in Government Code §6254(k).
The statute allows an entity subject to the CPRA to withhold “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”
Evidence Code §952, Aldrich noted, extends the attorney-client privilege to any “confidential communication,” including “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence,” by confidential means, and to a communication that “includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”
California case law also broadly defines the term, the justice explained.
The plaintiffs’ argument that a communication must contain legal advice to fall under the privilege “would be problematic” the justice said, because it would mean that a communication from the client to the lawyer would never be privileged, which would obviously be contrary to legislative intent.
Goals of Privilege
The goals of the privilege, to enable attorneys and clients to communicate confidentially and candidly about client matters, “would not be furthered if clients and attorneys were uncertain whether their communications contained sufficient advice or opinion to qualify as confidential communications,” Aldrich wrote. “Such a constricted view of Evidence Code section 952 would chill, rather than encourage, robust discussion between clients and their lawyers.”
He cited Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, which held that an opinion letter sent to Costco by one of its attorneys, who had interviewed two managers with regard to the company’s inquiry as to whether certain employees were exempt from overtime requirements, was privileged in its entirety. The court rejected efforts by attorneys for allegedly misclassified employees to obtain discovery of the letter, and said it was irrelevant whether the letter was prepared in anticipation of litigation.
The justice acknowledged that the specific issue of whether attorney invoices are privileged has not been previously decided by the court. In a footnote, he further acknowledged that non-California authority is divided on the subject.
Out-of-state cases, however, “are of limited utility,” he said, because in California, the attorney-client privilege is statutory.
Declaration Cited
The county’s intent to keep its communications with outside counsel, including their invoices, confidential is manifest, Aldrich went on to say. He cited a declaration by Assistant County Counsel Roger Granbo, who supervises outside counsel in law enforcement cases, and who wrote:
“[W]e make every effort to confine distribution of this material and information to our office alone, and to authorized representatives of the client, who are similarly required to keep the information confidential. That is our intent and policy as a general matter and in this particular matter.”
Attorneys on appeal included Granbo, Deputy County Counsel Jonathan McCaverty, and Timothy T. Coates and Barbara W. Ravitz of Greines, Martin, Stein & Richland for the county; Lisa Perrochet, Steven S. Fleischman and Jean M. Doherty of Horvitz & Levy, for the Association of Southern California Defense Counsel as amicus supporting the county; and ACLU Foundation legal director Peter J. Eliasberg and Davis Wright Tremaine’s Jennifer L. Brockett and Nicolas A. Jampol for the plaintiffs.
The case is County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California), 15 S.O.S. 1832.
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