Privilege and the Public Records Act

Privilege and the Public Records Act

To what extent does the attorney-client privilege[1] exempt from disclosure under Washington’s Public Records Act[2] billing statements submitted to government agencies by outside litigation counsel?

The privilege protects “communications incident to the giving and receiving of legal advice, and incident to the representation of the client’s legal interests.”[3] This includes attorney-client communications about relevant facts. As the Washington Supreme Court has noted, “‘[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, “What did you say or write to the attorney?’”[4]

The privilege “extends to documents that contain a privileged communication”[5] – including attorney billing records.[6] It does not, however, allow government agencies to withhold such records in their entirety. As the Court of Appeals held in Mechling v. City of Monroe, under the PRA, “if the requested records contain information covered by the attorney-client privilege and information that is not covered by the privilege, subject to in camera review, the [government agency] may only redact the privileged information.”[7] The agency may not simply withhold the records, and its redactions must be justified.[8]

To the extent there was uncertainty regarding whether the privilege exempted attorney billing statements from disclosure under the PRA in their entirety, the Legislature eliminated it in 2007 by enacting a statute providing in part:

It is the intent of the legislature to clarify that no reasonable construction of [the PRA] has ever allowed attorney invoices to be withheld in their entirety by any public entity in a request for documents under that chapter. It is further the intent of the legislature that specific descriptions of work performed be redacted only if they would reveal an attorney’s mental impressions, actual legal advice, theories, or opinions, or are otherwise exempt under chapter 391, Laws of 2007 or other laws, with the burden upon the public entity to justify each redaction and narrowly construe any exception to full disclosure…[9]

The limited protection afforded attorney billing statements has implications for how government agencies in Washington manage litigation handled by outside counsel – particularly because plaintiffs’ counsel frequently attempt to use the PRA during litigation to gain a tactical advantage or burden the agencies they sue. At a minimum, government agencies should be aware that billing statements submitted by outside counsel are subject to disclosure under the PRA. In-house government counsel may also wish to exercise caution in asking outside counsel to submit detailed billing statements that could require extensive redaction prior to disclosure under the PRA.

–Duncan E. Manville

[1] RCW 5.60.060(2)(a), providing that “[a]n attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.”

[2] RCW ch. 42.56.

[3] Karl B. Tegland, 5A WASH. PRAC., EVIDENCE LAW AND PRAC. § 501.15 (5th ed. 2014).

[4] Wright v. Group Health Hosp., 103 Wn.2d 192, 195 (1984) (quoting Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)).

[5] Kleven v. King County Prosecutor, 112 Wn. App. 18, 25 (2002). See also Harris v. Pierce County, 84 Wn. App. 222, 235-36 (1996).

[6] Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 807 (2011) (acknowledging that privilege could potentially protect information contained in requests for funding and reimbursement prepared by counsel for indigent criminal defendants); West v. Thurston County, 144 Wn. App. 573, 576, 584 (2008) (plaintiff, who had requested outside counsel’s billing records under PRA, “was entitled to the non-privileged parts of the firm’s billings,” but not privileged information).

[7] 152 Wn. App. 830, 853 (2009).

[8] Id.; West v. Thurston County, 168 Wn. App. 162, 171 (2012). Similarly, “if a portion of a document is not covered by the attorney-client privilege, under the civil rules of discovery it must be disclosed.” Mechling, 152 Wn. App. at 853.

[9] 2007 Wash. Laws ch. 391 (codified at RCW 42.56.904). Note that in California, unlike in Washington, the law regarding application of the attorney-client privilege to outside counsel’s billing statements is “currently in flux.” In County of Los Angeles Board of Supervisors v. Superior Court of Los Angeles County, 185 Cal. Rptr.3d 842, 857 (Cal. Ct. App. 2015), the California Court of Appeals held that billing statements submitted to government agencies by outside counsel containing privileged attorney-client communications were exempt in their entirety from disclosure under California’s public records law. However, the California Supreme Court accepted review of and vacated the Court of Appeals’ decision, County of Los Angeles Board of Supervisors v. S.C. (ACLU of Southern California), 189 Cal. Rptr.3d 206, 351 P.3d 329 (Cal. July 8, 2015), and a federal court subsequently declined to protect outside counsel’s billing statements under California law, Calfee v. Graham, 2015 WL 5601331, at *4 (E.D. Cal. Sep. 22, 2015).