The Public Records Act (Government Code § 6250 et seq. (PRA)) is frequently a feature of land use practice and litigation. Accordingly, land use practitioners (especially those representing or working for public agencies) should take note of the recent California Supreme Court case of Los Angeles County Board of Supervisors v. Superior Court. This case deals with the request for disclosure of attorney fee invoices for litigation involving a public agency. The Court’s 4-3 split on the issue is revealing of the fundamental issues at play and counsels familiarity with the opinion and the grounds upon which it rests.

In a decision that “implicates both the public’s interest in transparency and a public agency’s interest in confidential communications with its legal counsel,” the California Supreme Court held on December 29, 2016, that invoices for work in pending and active legal matters is privileged and protected from disclosure under the California Public Records Act (Gov. Code, § 6253, et seq.) to the extent that the invoices either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose. [Los Angeles County Board of Supervisors v. Superior Court, ___Cal.5th___, Case No. S226645 (Cal. Dec. 29, 2016).]

The case was decided on a 4-3 split, with Justices Chin, Liu, and Kruger concurring in the majority opinion by Justice Cuéllar, and Chief Justice Cantil-Sakauye and Justice Corrigan concurring in the dissent authored by Justice Werdegar. The dissent argued that the majority improperly carved away at the attorney-client privilege by holding that fee information may lose its privileged status over time.

This case is about the dollar amounts shown on attorney invoices. While a seemingly narrow issue for the California Supreme Court to address, it has the potential to open up new avenues of chipping away at claims of attorney-client privilege. The majority’s willingness to consider the “content and purpose” of communications for purposes of the attorney-client privilege analysis may invite more case-by-case analyses under the PRA and otherwise. Public agencies should take note.

(Matthew Henderson, Paige H. Gosney)