Q: I recently submitted a PRA request to our city attorney’s office regarding the legal defense of a city police officer. He is facing trial for assaulting a suspect. I simply inquired if he was paying his own defense or if the city was footing the bill. Their response was that 1) My request was in reference to pending litigation and therefore the city would not respond, and 2) attorney invoices, including general information, is subject to attorney-client privilege. So they will not answer me regardless. This seems fishy. They referenced LA County Board of Supes vs. Superior Court.
A: Under the PRA, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code
§6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
In general, California law provides that confidential communications between a lawyer and his or her client are privileged and do not have to be disclosed. Evidence Code §§ 954-955. As a preliminary matter, the attorney-client privilege applies only to those communications between an attorney and his or her client. As far as I can tell, you are not asking for a communication between the attorney and the client (the police officer), but rather information from the city on who is paying for this attorney’s services. Thus, the privilege doesn’t apply.
Beyond that, it is important to note that not everything that passes an attorney’s desk is covered by the attorney-client privilege. Rather, “[i]n order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose.” Los Angeles Cty. Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 297 (2016). The
court in the case the city cited held that “the contents of a [legal] invoice are privileged only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose. This latter category includes any invoice that reflects work in active and ongoing litigation.” Los Angeles Cty. Bd. of Supervisors, 2 Cal. 5th at 300.
The court went on to conclude, “While a client’s fees have some ancillary relationship to legal consultation, an invoice listing amounts of fees is not communicated for the purpose of legal consultation.” Id. at 296. Given this, you might want to ask the city not only to tell you whether it paid for this officer’s defense, but also for the invoices themselves showing the amounts paid.
I hope you find this information helpful, and wish you the best of luck in your reporting.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.