Friday, December 30, 2016
California Supreme Court Declares:
ACLU Can’t Obtain Attorney Bills in Pending Litigation
Majority Opinion Opens Door to Gaining Invoices From Outside Law Firms to County Relating To Resolved Litigation; Three Dissenters Say No Disclosure Should Be Compelled
By a MetNews Staff Writer
The ACLU has failed in its attempt to secure copies of attorney-fee invoices from outside counsel to the County of Los Angeles relating to current litigation over jail conditions, but may seek bills in connection with closed cases, the California Supreme Court held yesterday, in a 4-3 opinion.
“[I]nvoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege,” Justice Mariano-Florentino Cuéllar wrote, for the majority. “The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters.”
Justice Kathryn M. Werdegar dissented, arguing that all attorney bills should be held to be privileged, whether the cases to which they relate are pending or resolved. She was joined by Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan.
In a petition filed in Los Angeles Superior Court on Oct. 31, 2013, ACLU of Southern California and county taxpayer Eric Preven recited that they had each made a request under the Public Records Act for documents relating to litigation over jail conditions and that “[d]espite the public’s strong interest in the information sought, the County has disregarded its legal obligations and restricted public access to the information sought by the ACLU and Mr. Preven.”
The county had agreed to supply invoices for services in connection with three actions that had been completed, but not six that were in progress.
Petition Alleges Need
The petition set forth:
“Current and former jail inmates have brought numerous lawsuits against the County and others for alleged excessive force. The County has retained a number of law firms to defend against these suits. It is believed that the selected law firms may have engaged in ‘scorched earth’ litigation tactics and dragged out cases even when a settlement was in the best interest of the County or when a settlement was likely. Given the issues raised by the allegations in these complaints and the use of taxpayer dollars to pay for the alleged use of scorched earth litigation tactics, the public has a right and interest in ensuring the transparent and efficient use of taxpayer money.”
Then-Los Angeles Superior Court Judge Luis A. Lavin (now a member of the Court of Appeal) held that the ACLU was entitled to all of the invoices, but that where “these documents reflect an attorney’s legal opinion or advice, or reveal an attorney’s mental impressions or theories of the case, such limited information may be redacted.”
The county sought a writ in the Court of Appeal for this district, which was granted by Div. Three. Justice Richard Aldrich wrote:
“The question we resolve in this writ proceeding is whether billing invoices sent by an attorney to a client must be disclosed pursuant to the California Public Records Act (CPRA), or whether they are protected by the attorney-client privilege. Both the CPRA and the attorney-client privilege advance public policies of the highest order: the CPRA fosters transparency in government, and the attorney-client privilege enhances the effectiveness of our legal system. In the instant matter, these two interests collide. We conclude that, because the CPRA expressly exempts attorney-client privileged communications from the CPRA’s reach, the tension must here be resolved in favor of the privilege. Because the invoices are confidential communications within the meaning of Evidence Code section 952, they are exempt from disclosure under Government Code section 6254, subdivision (k).”
Under Evidence Code §952, the attorney-client privilege pertains to “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”
The Government Code section cited by Aldrich exempts from disclosure under the Public Records Act “[r]ecords, the disclosure of which is exempted or prohibited pursuant to…provisions of the Evidence Code relating to privilege.”
Cuéllar’s opinion rejects both the approach of Lavin and Aldrich.
With respect to the Evidence Code section—which he noted is incorporated into the Public Records Act via Government Code §6254(k)—he wrote:
“Merely sending invoices to a client, the ACLU contends, does not always ‘further the purpose of legal representation.’ Rather, invoices are meant to help a service provider secure payment for services rendered. The mere fact that an attorney chose to transmit his or her invoices in confidence is of no moment, according to the ACLU. Such invoices further a separate business purpose that is merely incidental to the attorney-client relationship. We agree––but only up to a point. The attorney-client privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation. Evidence Code section 952 twice states that the privilege extends only to those communications made ‘in the course of [the attorney-client] relationship,’ a construction suggesting a nexus between the communication and the attorney’s professional role. The Evidence Code also repeatedly refers to ‘consultation’ between the attorney and client….
“These references underscore that the privilege does not apply to every single communication transmitted confidentially between lawyer and client. Rather, the heartland of the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation.”
The jurist went on to say:
“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, they fall outside the scope of an attorney’s professional representation.”
Rejecting Aldrich’s view that all invoices are privileged, as well as Lavin’s view that none are, said:
“Instead, 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. This latter category includes any invoice that reflects work in active and ongoing litigation.”
Werdegar argued, in her dissent, that §952 declares that a privilege extends to “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.” She reasoned:
“No question exists that the invoices at issue in this case comprise ‘information transmitted’ between a law firm and its client, the Los Angeles County Board of Supervisors, that the information was generated within the course of the attorney-client relationship, and that the invoices were prepared and transmitted in confidence. As such, the invoices are privileged, and thus not subject to disclosure under the Public Records Act….
“The majority reaches a different conclusion by embellishing the words of the statutory privilege to discover a heretofore hidden meaning.”
The case is Los Angeles County Board of Superior Court v. Superior Court, 2016 S.O.S. 6641.
Arguing before the Supreme Court were Timothy T. Coates of Greines, Martin, Stein & Richland, presenting the county’s view, and Rochelle L. Wilcox of Davis Wright Tremaine, representing the ACLU and Preven.
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