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(Article from Insurance Law Alert, May 2015)

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Addressing a matter of first impression, a California appellate court ruled that attorney billing records are privileged and therefore are not subject to production pursuant to the California Public Records Act. Cnty. of Los Angeles Bd. of Supervisors v. Superior Court, 235 Cal. App. 4th 1154 (Cal. Ct. App. 2015).

The ACLU of Southern California sought the production of billing invoices of law firms hired by the County of Los Angeles to defend police brutality lawsuits. The County produced billing records for closed cases, but refused to produce statements relating to lawsuits that were still pending. The County argued that the statements were privileged under section 952 of the California Evidence Code, which defines a confidential communication as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence[,] … includ[ing] a legal opinion formed and the advice given by the lawyer in the course of that relationship." A trial court disagreed, holding that section 952 does not apply automatically to all attorney-client communications and that privilege was not established because the County failed to assert specific facts demonstrating that the contents of the billing records qualified as privileged communications. The appellate court vacated the ruling.

The appellate court reasoned that 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." The court held that section 952 does not require the party asserting privilege to establish that the communication contains "an opinion, advice, or indeed any particular content." The court explained that the phrase "includ[ing] a legal opinion formed and the advice given by the lawyer" was not intended to restrict privilege protection solely to communications containing legal advice, and instead serves as a non-exclusive list of examples of the types of information that may be included in a confidential communication. Applying this framework to the record presented, the court concluded that the billing records were privileged because the two statutory requirements were met—i.e., an attorney-client relationship existed between the County and the law firms and the billing records were transmitted between those parties during the course of representation.