I Could Have Sworn I Heard That Before: California Court of Appeal Holds That Legal Fee Invoices Are Privileged Communications.
By: Patrick M. Maloney and Carl I. S. Mueller of The Maloney Firm, APC
The Second Appellate District recently ruled that legal fee invoices fall within the attorney-client privilege as established in Cal. Evidence Code § 952. When said out loud, it seems obvious. But, according to County of Los Angeles Board of Supervisors v. The Superior Court of Los Angeles, case no. B257230, filed April 13, 2015, the question had not previously been resolved. In addressing the issue, the court noted that “while several cases have touched on the fringes of this question, none have squarely decided it.”
The case arose from a request under the California Public Records Act, wherein the ACLU attempted to obtain legal fee invoices, among other documents, from the Los Angeles County Board related to nine different lawsuits, “brought by inmates involving alleged jail violence,”. Six of the lawsuits were ongoing. The ACLU wanted to determine whether those lawsuits, defended by private firms on the taxpayers’ dime, were being litigated efficiently. The County Board agreed to produce redacted invoices for the concluded matters, but refused to produce the legal fee invoices for the ongoing disputes. So, the ACLU filed a petition for a writ of mandate in the Los Angeles Superior Court to compel the County Board to “disclose the requested records for all nine lawsuits.”
In what the appellate court referred to as “a thoughtful decision,” the trial court granted the petition, ordering the County Board to produce the legal fee invoices. In reaching its decision, the trial court cited the County Board’s failure to produce any “actual evidence concerning the contents of the billing statements, including whether they were produced for a litigation related
purpose.”
The County Board challenged the trial court’s ruling via a petition for writ of mandate to the appellate court. On appeal, the crux of the legal dispute fell to the following language defining a confidential communication within Evidence Code § 952:
Information transmitted between a client and his or her lawyer in the course of that relationship and in confidence […], and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Emphasis added).
The ACLU argued the phrase “and legal opinion” required that to qualify as protected, confidential, and privileged, the invoices needed to contain a legal opinion. However, the County Board argued the nature of the confidential communications as between an attorney and client created the privileged status, and the appellate court agreed. The court based this reading on historical context, and reasoned that any other reading created the absurd result of any confidential communication lacking legal opinion losing its privileged status.
Overall, the court once again chose to strengthen and uphold the sanctity of statutory privilege, and practitioners now only need to point to this decision when opposing a motion to compel production of legal fee invoices. However, as the appellate court noted, when prosecuting a request for attorneys’ fees, clients may decide to waive the privilege in relation to those legal fee invoices in order to enhance their potential for recovery.
The Maloney Firm, APC provides expertise to clients in relation to legal fee disputes and professional malpractice claims on either side of the aisle. Additionally, the professionals at The Maloney Firm, APC focus on providing clients with efficient and effective service in business disputes and employment litigation. www.maloneyfirm.com
