Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Billing Statements May Be Privileged

The attorney client privilege is defined by statute as covering "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence" (Evid. Code section 952(a).) Does that privilege cover billing statements?

The issue was squarely addressed in a recent decision from the Second Appellate District, Div. 3, filed April 13, 2015: County of Los Angeles v. Superior Court (ACLU), (2015) 235 Cal.App.4th 1154. You may think that answer should be obvious. This opinion shows the answer is surprisingly not obvious.

After all, we understand that the attorney client privilege is a facet of the attorney's broad duty of confidentiality toward the client codified in Bus. & Prof. Code section 6068(e), the duty to protect the client's confidences "at every peril" to the lawyer. And we know a specific statute, Bus. & Prof. Code section 6149 makes the attorney ­client fee agreement a confidential communication.

The case arises from the attempt by American Civil Liberties Union (ACLU) to obtain billing records from law firms representing the County of Los Angeles under the California Public Records Act (CPRA) (Gov. Code section 6250, et seq.) The ACLU wanted "invoices specifying the amounts that the County of Los Angeles had been billed by any law firm in connection with nine different lawsuits "brought by inmates involving alleged jail violence." The County agreed to produce redacted records for the three lawsuits no longer pending but declined to produce any billing records for the pending actions. It relied mainly on Gov. Code section 6254(k), which provides an exemption for records whose disclosure is exempted by federal or state law, including the Evidence code sections relating to privilege.

When the issue was addressed by the Superior Court in the ACLU's petition for Writ of mandated compelling production, the Court found that the County had failed to prove that the billing records were privileged. Parsing the Evidence Code, it found that not all attorney client communications are necessarily privileged and because there was no evidence produced as to the contents of the communications, the County had failed to meet its burden of showing the privilege applied. 

The Court of Appeal, after nothing that the question had not yet been squrely addressed, focused on the specific language of section 952 and the last sentence of the section, where it is stated that the privilege "includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." The ACLU argued that this clause meant that only communications containing legal opinions or advice could be deemed confidential.

The Court of Appeal concluded otherwise.  In an impressive display of judicial legerdemain, it examined the long legislative history of the statute from its humble birth in the Code of Civil Procedure to the addition of the clause relied on by the CLU. The Court concluded that these words were added to make clear that an attorney’s legal opinions and advice were still confidential and privileged even if never communicated to the client! The Court construing the statute and the privilege broadly in light of the important public purpose underlying the statute, enhancing "the effectiveness of our adversarial legal system by encouraging full and candid communication between lawyers and clients" concluded that the billing statements were confidential client communications exempt from disclosure under section 6254(k).

County of Los Angeles v. Superior Court (ACLU) is an important case upholding the breadth and depth of the attorney client privilege as applying to most communications between the attorney and client. Attorneys may breathe a sigh of relief knowing that those billing statements are not discoverable. Conversely, they may also grit their teeth, knowing those billing statements must be protected from disclosure under sections 6068(e) and 952.

– David Cameron Carr

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**