Private attorney costs to public agencies and attorney-client privilege
Q: Can a County Counsel’s office contract with a private law firm to help litigate a civil lawsuit, and not disclose the amount of the retainer agreement? Is it a confidential communication under the lawyer-client privilege? All I want to know is how much money the county plans to spend hiring an outside law firm.
A: The courts that have addressed the issue—primarily federal courts in California— have held that the amount of money paid to the attorneys is NOT protected by the attorney-client privilege. As the Ninth Circuit Court of Appeals held, “Not all communications between attorney and client are privileged. Our decisions have recognized that the identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege.” Clarke v. American Commerce National Bank, 974 F.2d 127 (9th Cir. 1992).
While there may have been some attorney-client privileged information in the retainer, it appears to have been a violation of the Public Record Act to not disclose the amount of the retainer agreement. See Cal. Government Code section 54957.5(a) (records provided to a Board of Supervisors or other legislative body in preparation for a public meeting are public records that must be available to the public under the California Public Records Act); Cal. Government Code section 6253(a) (if an agency claims a document has some protected information, that information must be redacted or segregated out and the rest of the information released to the public.