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The California Supreme Court ruled yesterday in a 4-3 decision that fee bills sent by private law firms to their government agency clients are confidential under the attorney-client privilege and thus exempt from disclosure by the agency under the California Public Records Act while the litigation they concern is still “pending and active,” but may be accessible when they pertain to “long-concluded” litigation.
The case did not involve, and so the court’s opinion did not decide or even discuss, a request under the CPRA for records of actual fee payments to outside counsel, which typically identify the matter billed for but do not specify the nature of the work done. Thus although the public may now have to wait months or years to discover what the lawyer or law firm claimed to have earned, there should be no legally authorized delay in finding out, by a CPRA request, how much the agency is actually paying its outside counsel within a given period.
The “pending and active” vis-à-vis “long-concluded” distinction made by the majority was resoundingly rejected by the dissent as unsupported by either statute or case law concerning the confidentiality of attorney-client communications. And it also leaves unclear the status of law firm invoices for legal work having nothing to do with the agency’s “pending and active” litigation, e.g. a memorandum discussing the potential impact on the agency’s policies or practices of new case law, legislation or regulations. Arguably, such updating analyses are of far greater public interest than communications in the course of litigation, since they provide a basis for the public to evaluate the agency’s reactions to the changing legal environment.