Monday, May 4, 2015

Our Bills Are Now Privileged

County of L.A. Bd. of Supervisors v. Superior Court, No. B257230 (D2d3 Apr. 13, 2015)

I’m not sure the court of appeal realizes it, but this opinion massively expands the scope of the attorney client privilege in California.

It’s a PRA case. The ACLU is trying to get copies L.A. County’s bills for outside counsel representing sheriffs in excessive force cases, including pending ones. Although it intuitively seems like that might better fall under some litigation-related exception, when it comes to bills, the county already lost that case two years ago.  See Cnty. of L.A. v. Superior Court, 211 Cal. App. 4th 57, 65 (2012). So in this case it claimed an exemption under Gov. Code § 6254(k), which provides an exception for documents privileged under the Evidence Code. According to the county, its bills are covered in their entirety by the attorney client privilege. The trial court held that the bills themselves, which aren’t made in the context of providing any legal advice, were not privileged, although to the extent that billing entries revealed client communications or work product, they could be redacted. That feels like the right result. But the county took a writ, which the court of appeal here grants.

After finding a lack of controlling California precedent, the court turns to the text of Evidence Code § 952, which defines “confidential communication” for the purposes of the privilege. A communication is confidential when: (1) it is transmitted between attorney and client; (2) in the course of an attorney client relationship; (3) in confidence; (4) by a means that doesn’t disclose the information to anyone unnecessary to transmit the information or otherwise accomplish the purpose for which the attorney was consulted. The statute goes on to say that a confidential communication “includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” 

The ACLU argued that the final “legal opinion and advice” clause means that only communications containing legal advice or opinion are confidential. The county argued that the final sentence was just an example.  The court, looking to the history of the statue, notes that the language was specifically added to ensure that “confidential communications” included legal opinions that were not actually communicated.  The sentence was added to expand, not restrict the privilege.

It further reasons the clause can’t be a restriction, because limiting the privilege to legal advice would be absurd. In particular, the limitation would exclude statements by clients to their attorneys conveying factual or other information germane to the representation. Those are uniformly recognized as within the privilege.

The court also finds support in the Supreme Court’s decision in Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 735 (2009). In Costco, the court held that a memorandum between lawyer and client was privileged in its entirety, even though portions of the memo conveyed only non-privileged factual information. The court further held that that trial courts do not have the power to compel parties to submit documents for in camera review to determine whether they are privileged.  In coming to that result the court explained that “because the privilege protects a transmission irrespective of its content, there should be no need to examine the content in order to rule on a claim of privilege.”  Thus, according to the court here, “the proper focus in the privilege inquiry is not whether the communication contains an attorney’s opinion or advice, but whether the relationship is one of attorney-client and whether the communication was confidentially transmitted in the course of that relationship."

Based on the above analysis, the court holds that the invoices were privileged in their entirety. In particular, a declaration from an assistant county counsel, attesting that there was an attorney client relationship between the county and the billing attorneys and that the county kept the invoices confidential was sufficient foundation to satisfy Evidence Code § 952.

Finally, the court rejects several policy arguments raised by the ACLU. While the right to know under the PRA is important, it doesn’t trump the privilege. Moreover, provided the information is available in some other form, it can still be obtained. Nor do the results here “wreak havoc” with the requirements for prevailing parties to obtain fee awards. Detailed billing statements are not always required. And in any event, a prevailing client could always waive.

Writ granted.

Well that eliminates the tricky column from the privilege log, doesn’t it. As the court notes in a footnote, a bunch of other courts, including the Ninth Circuit, go the other way. See Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (holding that bills are privileged only to the extent the reveal attorney-client communications germane to giving legal advice). That is because the traditional Wigmorean formulation of the privilege applied under federal common law requires that the subject matter of the attorney-client communications actually bear some relation to providing legal advice to the client. See Fisher v. United States, 425 U.S. 391, 403 (1976). So in federal court, the mere fact that a bill is sent from attorney to client does not make it privileged.

But, as California courts often point out, state privilege is a strict creature of statute. See Cal. Evid. Code § 911. Although § 952 requires a professional relationship and a confidential communication inside of that relationship, it does not specifically say that the communication must relate to the purpose of the relationship. So while this opinion seems incredibly overbroad, it’s more or less consistent with the letter of the California statute, although broadly read.

Update: Review granted on July 8, 2015.

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