In Los Angeles County Board of Supervisors v. Superior Court (ACLU), published December 29, 2016, a divided California Supreme Court reversed the lower appellate court's ruling that a public entity's outside counsel's billing invoices were categorically excluded from the California Public Records Act as attorney-client privileged communications. The ACLU had sought invoices specifying the amount any outside firm had billed the petitioner county for defense in nine specified lawsuits. The county agreed to produce redacted invoices from three lawsuits no longer pending, but declined to produce invoices in the six pending lawsuits. Among its grounds was that they were privileged attorney-client communications that contained work product, were therefore privileged under the Evidence Code, and were therefore exempt from the CPRA under Government Code section 6254(k). The appellate court issued a writ petition reversing the decision, and holding that all billing invoices are protected attorney-client communications.
The Supreme Court split 4-3 on the question of whether the invoices were protected from the CPRA. The majority held that the contents of an attorney's invoice to a client 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. The majority further held that the latter category includes any information in any invoice that reflects work in active and ongoing litigation. The majority reasoned that invoices in themselves are not protected communications, because they are submitted for the purpose of getting paid rather than for purposes that are the "heartland" of attorney-client privilege: information conveyed for the purpose of legal representation. But they can contain information conveyed for that purpose. Because invoices in ongoing and pending litigation pose too great a risk of disclosing the substance of legal consultation and strategy. But information such as cumulative totals of billing for long-concluded litigation pose less of a danger of disclosing the substance of legal consultation.
The dissent opined that the attorney-client privilege applies to all attorney-client communications in the course of a representation, regardless of content; and that the passage of time does not affect the privilege.
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