Should attorney-client privilege apply to invoices for both ongoing and concluded matters? It’s possible that the Supreme Court of California’s decision could have far-reaching implications.
The firm Holland & Knight recently issued a thorough alert regarding the court’s 2016 decision in County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California). The dispute was over the American Civil Liberties Union’s Public Records Act request to access law firm invoices in order to know the amount that the county paid to defend lawsuits filed by inmates who alleged jail violence. While the county produced the invoices for concluded matters, it would not supply them for cases that were still active, citing that those invoices remain privileged as they could reveal litigation strategies.
As the alert summarizes, in order to reach its decision, the court applied California Evidence Code Section 952 and concluded that the privilege does apply to communications that are related to the provision of legal consultation, noting “[i]nvoices for legal services are generally not communicated for the purpose of legal consultation.”
Per Holland & Knight:
“Although the court offered little guidance for delineating when an invoice is or is not communicated for purposes of legal consultation, the court took a unique approach and announced a categorical distinction for invoices connected to ongoing matters, holding that, ‘[w]hen a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees.’”
The firm concluded that while attorneys can remain confident that privilege continues to apply to invoices from ongoing matters, going forward they should consider the nature and sensitivity of the information included.