State Court Decision Differs from Federal Opinions on the Topic.
Although this is maybe a little off topic, Walley v. Superior Court (Hoover), Case No. G048340 (4th Dist., Div. 3 July 24, 2013) (unpublished) is an interesting writ proceeding where an attorney challenged a lower court order to disclose invoices and accounting documents transmitted to him during his representation by another outside law firm in a case filed by a third party, putative “client” against the writ-seeking attorney.
Attorney prevailed in the writ proceeding, in a by-the-court decision endorsed by Justices O’Leary, Fybel, and Thompson.
Plaintiff suing for defendant attorney’s breach of fiduciary duty served a custodian deposition subpoena on a law firm that had represented defendant attorney earlier, seeking “[a]ll accounting records, including account receivable and billing system records, which are related to [the earlier arbitration action in which plaintiff recovered an award against attorney].” Attorney claimed this information was attorney-client privileged vis-a-vis the law firm representing him earlier. The lower court disagreed, denying a motion to squash and ordering production within 30 days
The appellate court overturned the lower court ruling, after staying the production order while the writ proceeding wound through the system.
The attorney-client privilege indeed prevailed. “The parties have not cited any California case, and we have found none, which specifically analyzes whether attorney accounting records transmitted to the client constitute attorney-client confidential communications within the meaning of Evidence Code section 952. While a few cases assume attorney billing statements are confidential communications in other contexts, no California case has examined the application of the privilege to such documentation and communications in the context of discovery,” citing cases approving submission of redacted billings in order to uphold the privilege in attorney fee proceedings. (Slip Opn., pp. 9-10.) The confidential nature of the billings were buttressed by the fact the Legislature, in Business and Professions Code section 6149, mandated that written fee contracts between clients and attorneys are confidential communications.
Walley also did not find persuasive federal cases holding billings were not confidential in nature. Most importantly, in a footnote, the appellate court found that all of the cited cases predate the enactment of Business and Professions Code section 6149, with California law “trumping” federal law on the subject.
BLOG OBSERVATION: This really is a first impression case. Its reasoning and cited cases on fee proceedings--Banning v. Newdow, 119 Cal.App.4th 438 (2004) and Smith v. Laguna Sur Villas Community Assn., 79 Cal.App.4th 639, 645-646 (2000)--would be useful in supporting submission of redacted fee billings in support of a fee petition, if the redactions are done selectively to safeguard confidential attorney-client communications. For published cases or previous posts on unpublished cases relating to redacted billing submissions, see Jaramillo v. County of Orange, 200 Cal.App.4th 811, 829-830 (2011) [4th Dist., Div. 3; Rylaarsdam, J.] [condoning use of more generalized billing entries if attorney-client privilege jeopardized]; Johnson v. Bd. of Education of Bakersfield City School Dist., Case No. F059702 (5th Dist. March 29, 2011) [unpublished, reviewed in our March 31, 2011 post] [error for lower court to discount fees altogether where heavily redacted billings were submitted]; City of Lake Forest v. Lake Forest BodyCentre, Case No. G043301 (4th Dist., Div. 3 Feb. 9, 2012) [unpublished; Fybel, J., reviewed in our Feb. 10, 2011 post] [remand where severely redacted billings used so no meaningful review was possible]; Fuller v. Monogram Real Estate, Case No. G044808 (4th Dist., Div. 3 Dec. 19, 2011) [unpublished; O’Leary, A.P.J., reviewed in our Dec. 20, 2011 post] [suggesting compromise where heavily redacted billings being used: either waive the privilege or present more detail in the attorney declaration submitted in support of the fee motion].
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