MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 129
THE ATTORNEY-CLIENT PRIVILEGE IS NOW DIMINISHED
The simple question in Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (L.A. County) is whether invoices by an outside law firm to a governmental agency are covered by the attorney-client privilege and, therefore, exempt from disclosure under the California Public Records Act (PRA). L.A. County’s supposedly narrow holding that the privilege may not extend to such invoices in inactive matters has, however, much broader implications.
In L.A. County, the ACLU submitted a PRA request to the County for invoices specifying the amounts 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 related to lawsuits that were no longer pending, with attorney-client privileged and work product information redacted, but declined to provide invoices for the pending lawsuits. The ACLU filed a petition for writ of mandate, seeking to compel the County to comply with the PRA and to disclose the requested records for all nine lawsuits because the public had a right to know whether taxpayer money had been appropriately spent in defending the lawsuits. The trial court granted the petition and the Court of Appeal, upon petition, vacated the superior court’s order.
Justice Cuellar, writing for the 4-3 majority (joined by Chin, Lui and Kruger), reversed the Court of Appeal and remanded the matter to that court consistent with the opinion in L.A. County. He recognized that the attorney-client privilege “protects the confidentiality of invoices for work in pending and active legal matters” but “does not categorically shield everything in a billing invoice from PRA disclosure,” particularly those invoices where the matter is no longer active. He began by looking at the attorney-client privilege in Evidence Code section 954, which confers a privilege on the client “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” Next, Cuellar concluded that the “privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation,” since 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.” (Id. at pp. 293-294.) Thus, he reasoned, the mere fact that an attorney has transmitted a communication to a client does not make it protected by the attorney-client privilege. (Id. at p. 296.) Justice Werdegar, dissenting for herself, the Chief Justice and Justice Corrigan, observed that “The majority’s decision to add consideration of a communication’s purpose as an additional, nonstatutory element to the Legislature’s definition of a ‘confidential communication’ is unsupported in law.” (Id. at p. 302.) She then added, “this court is simply not free to add elements and prerequisites to a statutory rule of evidentiary privilege. Whether it might be wise policy to find a ‘confidential communication’ within the meaning of section 952 must be one ‘made for the purpose of seeking or delivering the attorney’s legal advice or representation’ is a question more properly consigned to the discretion of the Legislature and not this court.” (Id. at p. 306.)
Having looked at the standards for the attorney-client privilege, Cuellar then applied them to current and former billing invoices from attorneys to their clients and held that the privilege encompasses everything in billing invoices in pending and active cases, even if not made for the purpose of legal representation, because the information, even if general in nature, “may come close enough to this heartland to threaten the confidentiality of information directly relevant to the attorney’s distinctive professional role.” (Id. at p. 297.) However, “In contrast to information involving a pending case, a cumulative fee total for a long-completed matter does not always reveal the substance of legal consultation. … Instead, the privilege turns on whether those amounts reveal anything about legal consultation.” (Id. at p. 298.) Werdegar, in dissent, noted that this holding conflicts with Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725 that Evid. Code section 954 prohibits courts from parsing a communication between lawyer and client in order that those parts not involving a legal opinion or advice can be disclosed. (Id. at pp. 304-305.) She further noted that the attorney-client privilege “survives the termination of litigation and continues even after the threat of liability or punishment has passed.” (Id. at p. 305.)
The implications of L.A. County go far beyond PRA or FOIA requests for old public agency invoices or any attorney invoices, for that matter. As Werdegar warned in her dissenting opinion, “The majority’s suggestion the protective power of the attorney-client privilege under section 954 may not continue to encompass all portions of a document that previously qualified as a ‘confidential communication’ under section 952 is mischievous in the extreme. Following today’s decision, attorneys in this state must counsel their clients that confidential communications between lawyer and client, previously protected by the attorney-client privilege, may be forced into the open by interested parties once the subject litigation has concluded. If a limiting principle applies to this new rule, it is not perceptible to me.” (Id. at p. 305.)
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, January 2017