In Disney’s The Lion King, the wise lion Mufasa sits atop a rock crag with his heir, the cub Simba, looking down on the Serengeti below. “Everything the light touches,” Mufasa instructs, “is our kingdom.” A similar scene plays out in countless law firms each year, when newly admitted attorneys are trained on the boundaries of the attorney-client privilege, a realm of communication protected from disclosure to outsiders. The California Supreme Court recently cast a shadow over this privilege, however, calling into question the extent to which it applies to one of the most common forms of attorney-client communication: an attorney’s bill.
The issue came before the California high court in connection with an attempt by the ACLU to access information about how much the County of Los Angeles had paid law firms to defend litigation brought by jail inmates alleging excessive force. The ACLU submitted a formal request to the county under California’s Public Records Act, asking for attorney invoices in connection with nine such lawsuits. The county produced invoices for those lawsuits that were no longer pending, but refused to produce invoices for then-current litigation. The ACLU sued for access to the invoices that had not been produced and, in the resulting case, L.A. County Board of Supervisors v. Superior Court, the trial court ordered the disclosure of those invoices. Through subsequent appeals, the California Supreme Court faced the question of when attorney invoices are privileged and when they are not.
The California Supreme Court rejected the notion that all communications between attorney and client are privileged. “Invoices for legal services,” in particular, “are generally not communicated for the purpose of legal consultation.” Instead, the court observed, “their purpose is to ensure proper payment for services rendered, not to seek or deliver the attorney’s legal advice or representation.” Thus, the court refused to apply the privilege in a blanket manner to attorney invoices, but held instead that “the contents of an invoice 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.”
The Supreme Court’s refusal to wholly shield attorney billing records from disclosure may be troubling at first to attorneys and their clients. But the court’s recognition that invoices might contain information that risks exposing legal consultation—and is therefore privileged—takes much of the sting out of the Board of Supervisors decision. Most importantly, the Supreme Court held that “any invoice that reflects work in active and ongoing litigation” risks exposing the sort of information that must be protected by the privileged.
Additionally, the court recognized that detailed billing information—such as records provided “to inform the client of the nature or amount of work occurring in connection with a pending legal issue”—remains privileged. This information, the California Supreme Court observed, “lies in the heartland of the attorney-client privilege.” To this extent, Board of Supervisors mirrors the approach taken by federal courts in California for decades, distinguishing between “a simple invoice requesting payment for unspecified services rendered,” on the one hand, and “bills, ledgers, statements, time records and the like which also reveal the nature of the services provided, such as researching particular areas of law,” on the other. The former, the Ninth Circuit held in a 1982 decision, are “not normally … privileged,” while the more detailed records “fall within the privilege.”
And when it comes to “simple invoices,” the California judiciary actually appears to take a more conservative approach than its federal counterpart, excepting from the privilege only cumulative fee totals for long-concluded matters. The California Supreme Court observed that privileged information could be gleaned by comparing multiple fee amounts in a single case over time. “Midlitigation swings in spending, for example, could reveal an impending filing or outsized concern about a recent event.” For this reason, the court limited its holding to only the cumulative amount spent on a matter, with no obligation to disclose individual fee amounts over time or to disclose any fee information prior to the matter’s conclusion.
While the lower courts will certainly be left with questions in implementing Board of Supervisors—including whether the case even applies outside of the Public Records Act context—the most sensitive aspects of attorney bills are likely to remain protected. The decision appears to be only a minor adjustment to the outer boundaries of the attorney-client privilege, leaving the “heartland” of the privilege intact.