California Court of Appeal Rules Attorney-Client Privilege Exemption Covers Billing Invoices

Billing invoices sent by an attorney to a client are exempt from disclosure under the California Public Records Act, a California appellate court ruled this week. The court held that, when a government entity declines to disclose records under the Act based on the attorney-client privilege, the inquiry turns on whether there was an attorney-client relationship between the parties to the communication — not on the content of the specific communication in question. The court ultimately determined that attorney-client privilege covers a communication, irrespective of its content.

In County of Los Angeles Board of Supervisors v. ACLU of Southern California, the ACLU submitted a PRA request to the County for invoices specifying the amounts that the County had been billed by any law firm in connection with nine different lawsuits brought by inmates involving alleged jail violence. The ACLU sought the documents to determine what work was being done on the lawsuits, the scope of that work, the quality of the representation and the efficiency of the work. The County maintained that the detailed description, timing and amount of work its attorneys performed would communicate attorney strategy, tactics, thought processes and analysis and was therefore exempt from disclosure under the evidentiary privilege provision of the PRA. The court recognized the tension between the public policies advanced by the PRA and attorney-client privilege, but determined that, because the PRA expressly exempts attorney-client communications, the tension must be resolved in favor of the privilege.

While a public entity opposing disclosure bears the burden of showing the requested information falls within an exemption, the court determined that the County met this burden here. The court examined the legislative history of the attorney-client privilege and found that the privilege was not limited to communicated legal opinions. This means that whether a communication is privileged cannot turn on whether it contains a specific legal opinion. Because the fundamental purpose of the privilege is to safeguard the confidential relationship between clients and their attorneys, it is the relationship that matters, not the specific communication in question. As long as that communication is made in the course of that relationship (and not, for example, legal advice outside the scope of the attorney’s relationship with the client), it retains the privilege.

Compliance with PRA requests must be carefully conducted and scrutinized, both to ensure complete disclosure and that material covered by legal privileges or otherwise exempt from disclosure under the Act is not inadvertently disclosed. This is especially true in the wake of Ardon v. City of Los Angeles, where a California appellate court held that, if a privileged document is accidentally released during compliance with a PRA request, the privilege is waived and the document becomes a public record. Where attorney-client privilege applies, disclosure may be declined. Public agencies should be aware that information that is not otherwise privileged does not now become privileged merely because it is transmitted to or from an attorney. Only information communicated within the course of the attorney-client relationship is exempt from PRA requests.