Are Attorneys’ Bills Privileged Once Litigation Ends – California Supreme Court Says No in ACLU Litigation?

The California Supreme Court recently held, in Los Angeles Board of Supervisors v. Superior Court (2016) that attorneys’ invoices may not be protected by the attorney-client privilege after litigation ends. The issue arose out of a lawsuit brought by the ACLU to obtain billing records by law firms representing the City of Los Angeles to defend litigation brought by jail inmates. The ACLU’s position was that these law firms engaged in “scorched earth” tactics.

The Court affirmed some limitations on production of these bills. The Court conceded that information could be protected if it tells the client “of the nature or amount of work occurring in connection with a pending legal event” or even an uptick in amounts spent “could reveal an impending filing or outsized concern about a recent event.” However, such information may not be protected if the litigation has terminated. At that point, the disclosure of the cumulative amount spent “may communicate little or nothing about the substance of the legal consultation.”

The Court’s core message was that “invoices for legal services are generally not communicated for purposes of legal consultation.” Or stated again, “while a client’s fees have some ancillary relationship to legal consultation, an invoice listing amounts of fees is not communicated for purposes of legal consultation.” Or again: “billing invoices are generally not made for purpose of legal representation.” None of these statements have supporting citations to law or evidence. In other words, there may be an argument in the right case that, once the underlying litigation is terminated, the purpose of the billed amount may be discoverable.

The Court ultimately cited one lower court case, Concepcion v. Amscan Holdings, 223 Cal.App.4^th 1309, 1326-1327 (2014), for the proposition that “California courts have generally presumed that invoices for legal services are not categorically privileged.” But there the issue was a motion by class counsel to obtain a fee award from the court. In such cases, the courts have relied on the rule, as did the Concepcion court, that a plaintiff impliedly waives attorney client privilege when the communication goes to the heart of its claim. See, e.g., Chicago Title Ins. Co. v. Superior Court, 174 Cal.App.3d 1142, 1149 (1985).

The Court also cited two Federal decisions as evidence that that “the disclosure of billing invoices is the norm in federal courts in California,” suggesting that fee information is not privileged. But in those cases, the court held that the fee statements were not subject to attorney work-product privilege, which has a narrower scope in Federal court than in state court. Additionally, the bills are subject to in camera review in Federal court, but not in California state court. Costco Wholesale Corp. v. Superior Court, 47 Cal.4^th 725, 736-738 (2009).

There are three takeaways from this decision. The first is that this case signals a radical departure from the Court’s prior trend, as exemplified by the Costco case, of giving wide berth to attorney-client privilege, and retaining that privilege beyond the termination of the litigation. The second is that the academics on the Court may not appreciate the degree to which fee bills provide information to clients, especially insurance clients. The third is that this case has significance far beyond a Public Records Act dispute.