Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3051" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/01/Privilege-3-300x300.jpg" alt="Folder search" width="300" height="300">In late December, a divided California Supreme Court <a href="http://filehost.thompsonhine.com/uploads/LA_Cty_Bd_of_Supervisors_v._Superior_Ct_of_LA_a0e1.pdf">ruled </a>that legal-fee bills in closed cases aren&rsquo;t necessarily covered by attorney-client privilege.&nbsp; Although the case involved a discovery demand&nbsp;&nbsp;sent to a government entity&nbsp;under the state&rsquo;s&nbsp; public records act,&nbsp;<a href="http://www.therecorder.com/id=1202775795778/Decision-on-AttorneyClient-Privilege-Spooks-Defense-Bar?slreturn=20170015093826">some lawyers have&nbsp;questioned</a> (sub. req.) how far the privilege limitations might&nbsp;go.
No &ldquo;categorical&rdquo; protection
The case arose out of a public-records request from the ACLU of Southern California to the Los Angeles County Board of Supervisors, seeking legal fee invoices that would reveal&nbsp;law firm billings to the county regarding nine lawsuits, each of which alleged the use of excessive force against inmates in the L.A. County jail system.&nbsp; The ACLU alleged that the county and its outside lawyers were&nbsp;pursuing &ldquo;scorched earth&rdquo; tactics in refusing to settle excessive-force cases, and were using taxpayer dollars to do so.
Three of the&nbsp;cases were closed; the county agreed to produce copies of those legal bills.&nbsp; But as to the six still-pending suits, the county said that they were exempt from the reach of the public records law under the attorney-client privilege exception, because &ldquo;the detailed description, timing, and amount of attorney work performed ... communicates to the client and discloses attorney strategy, tactics and thought process and analysis.&rdquo;
On dueling writs of mandate, the intermediate state court of appeals found that the invoices were privileged and exempt from disclosure under the public record act.&nbsp; &nbsp;In a 4-3 vote, the state supreme court reversed.
The high court rejected &ldquo;categorical protection&rdquo; for billing records.&nbsp; Acknowledging that attorney-client privilege &ldquo;no doubt holds a special place in the law of our state,&rdquo; the majority wrote that it still only protects communications &ldquo;made for the purpose of seeking or delivering the attorney&rsquo;s legal advice or representations.&rdquo;
Agreeing with the ACLU, the majority opinion said that &ldquo;while invoices may convey some very general information about the process through which a client obtains legal advice, their purpose is to ensure proper payment for services rendered, not to seek or deliver that attorney&rsquo;s legal advice or representation.&rdquo;&nbsp; Fee bills, the&nbsp;court said, evoke &ldquo;an arm&rsquo;s -length transaction between the parties in the market for professional services&rdquo; more than they do the &ldquo;discreet conveyance of facts and advice.&rdquo;
Information in the &ldquo;heartland&rdquo;?
What remains privileged in a fee bill, however, said the court, is information that &ldquo;lies in the heartland of the attorney-client privilege&rdquo; &mdash; namely everything in an invoice on an active and pending legal matter &mdash; even when the information is&nbsp; conveyed in a document, i.e. the&nbsp; bill, &nbsp;that is not &ldquo;categorically privileged.&rdquo;
The dissenters said that the majority&rsquo;s ruling undermines a &ldquo;pillar of our jurisprudence&rdquo; by adding a &ldquo;heretofore hidden meaning&rdquo; to the state privilege statute, by shielding only communications that relate to the provision of legal consultation, even if they were otherwise transmitted confidentially between lawyer and client.
Following the majority&rsquo;s rule, the dissenters wrote, means that lawyers must explain to their clients that confidential communications that were previously privileged &ldquo;may be forced into the open by interested parties once the subject litigation has concluded.&nbsp; If a limiting principle applies to this new rule,&rdquo; the dissent warned, &ldquo;it is not perceptible...&rdquo;
Privilege takeaways
The contents of fee bills have long been subject to attorney-client privilege when they reveal information about strategy, research topics and the like.&nbsp;&nbsp;As even the majority in this case notes, things like research topics or an uptick in the hours charged can be useful information to litigation opponents.&nbsp; But as California commentators <a href="http://www.bullivant.com/California-Supreme-Court-Introduces-More-Subjectivity-into-Attorney-Client-Privilege-Determinations">point out</a>, the case will likely be read as a narrowing of the privilege, and by introducing subjectivity into the test, will possibly encourage discovery forays against&nbsp;the fee bills of opposing counsel.
California lawyer Ellen A. Pansky, quoted in&nbsp;the&nbsp;<a href="https://www.bna.com/not-legal-bills-n73014449687/?EloquaCID=4409&amp;utm_campaign=LEGAL_NWSLTR_Lawyers%27+Prof+Conduct+Update_011317&amp;utm_medium=email&amp;utm_source=Eloqua&amp;elqTrackId=c4f32d075c664812a49b3bd0a310a0e5&amp;elq=1376042939884731851900acd9f3838b&amp;elqaid=7386&amp;elqat=1&amp;elqCampaignId=4409">ABA/BNA&nbsp;Lawyers&rsquo; Manual on Professional&nbsp;Conduct</a>, noted that &ldquo;the case leaves an interesting, unanswered question: What mechanism will courts use to resolve a privilege claim when a party asserts attorney-client privilege to only portions of invoices previously transmitted in a completed prior matter?&rdquo;&nbsp; This might be an acute question, because California law seems to be that a court may not compel disclosure of attorney-client communications, even in camera, to rule upon a claim of privilege.
Particularly if you have cases in which California privilege law applies, stay tuned.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

CA Supreme Court rules against “categorical” privilege for public agency legal bills