Thursday, August 10, 2017

I Guess It's Not Over

Cnty. of L.A. Bd. of Supervisors v. Superior Court, No. B257320A (D2d3 Jun. 22, 2017)

This is the remand in County of L.A. v. Superior Court, the Supreme Court’s big decision on the scope of the attorney client privilege from the end of 2016. As when this case was before the Court of Appeal the first time around, the panel seems inclined to read the privilege expansively, even after getting reversed for doing that the first time around.

Just to set the scene here, this panel originally ruled that all legal bills are privileged because they are confidential communications between attorney and client and thus fall within Evidence Code § 952’s definition of the attorney-client privilege. But the Supreme Court granted review and reversed. It held that § 952’s requirement that the communications occur “in the course of” an attorney-client relationship effectively require the subject of the communication to relate to the purpose of giving or receiving legal advice. Because legal bills themselves are not communicated for that purpose, they are not categorically privileged. Instead, courts must look to communications that are potentially revealed within the bills, which are “privileged only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose.” On the specific issue of fee totals, the court held that under its articulated standard, they are likely privileged for ongoing litigation, because, in context of an active case, the risk that advice or strategy can be gleaned from them is high. But once the litigation is closed, not so much.

On remand, the panel reads the decision reversing it very narrowly. Fee totals from ongoing cases are categorically privileged. Those from closed cases get a remand back to the superior court for a determination under the Supreme Court’s standard. The Court of Appeal then turns to billing entries that show activities and time spent. But it reads the Supreme Court opinion as applying only to fee totals. For time and activity entries—whether for active or closed matters—the court reads the Supreme Court opinion as making those entries categorically privileged, based on a single sentence in the opinion: “To the extent that billing information is conveyed ‘for the purpose of . . . legal representation’—perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue—such information lies in the heartland of the attorney-client privilege.” (Emphasis Court of Appeal’s.)

That seems like an over-reading to me. The Supreme Court qualifies its description with “to the extent” and
“perhaps.” That would seem to suggest a fact- and context- specific application, not a categorical one. It’s certainly true that billing entries can suggest attorney-client privileged communications or attorney work-product. But do they always? Are we sure that entries like “[a]ttend summary judgment hearing”; “meet and confer with opposing counsel”; “read opposing party’s motion papers” really convey any privileged communications? Or does having sent a bill in a closed case with those kinds of entries itself manifest a communication that relates to the purpose of conveying legal advice? Because if they do, it seems like bills are back to being categorically privileged—the very point that the Court of Appeal got reversed on.

Reversed in part and remanded in part.

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