SEE DISSENTING OPINION.

Filed 12/29/16 (reposted to delete inadvertent underlinings)

IN THE SUPREME COURT OF CALIFORNIA

LOS ANGELES COUNTY BOARD )

OF SUPERVISORS et al., )

)

Petitioners, )

) S226645

v. )

) Ct.App. 2/3 B257230

THE SUPERIOR COURT OF )

LOS ANGELES COUNTY, )

) Los Angeles County

Respondent; ) Super. Ct. No. BS145753

)

ACLU OF SOUTHERN )

CALIFORNIA et al., )

)

Real Parties in Interest. )

____________________________________)

This case implicates both the public’s interest in transparency and a public 

agency’s interest in confidential communications with its legal counsel. The 

specific question we must resolve is whether invoices for work on currently 

pending litigation sent to the County of Los Angeles by an outside law firm are 

within the scope of the attorney-client privilege, and therefore exempt from 

disclosure under the California Public Records Act (PRA; Gov. Code, § 6250 et 

seq.). What we hold is that the attorney-client privilege does not categorically 

shield everything in a billing invoice from PRA disclosure. But invoices for work 

in pending and active legal matters are so closely related to attorney-client 

communications that they implicate the heartland of the privilege. The privilege 
2

therefore protects the confidentiality of invoices for work in pending and active 

legal matters. 

I. BACKGROUND

On July 1, 2013, following several publicized inquiries into allegations of 

excessive force against inmates housed in the Los Angeles County jail system, the 

ACLU of Southern California and Eric Preven (collectively, the ACLU) submitted 

a PRA request to the Los Angeles County Board of Supervisors and the Office of 

the Los Angeles County Counsel (collectively, the County). The request sought 

“invoices” specifying the amounts that the County had been billed by any law firm 

in connection with nine different lawsuits alleging excessive force against jail 

inmates. 

In a letter dated July 26, 2013, the County agreed to produce copies of the 

requested invoices related to three such lawsuits that were no longer pending, with 

attorney-client privileged and work product information redacted. The County

declined to provide invoices for the remaining six lawsuits, which were still 

pending. According to the County, “the detailed description, timing, and amount 

of attorney work performed, which communicates to the client and discloses 

attorney strategy, tactics, thought processes and analysis” were privileged under 

the Evidence Code and therefore exempt from disclosure under Government Code 

section 6254, subdivision (k) (all undesignated cites hereafter are to the 

Government Code). The requested invoices, the County continued, were also 

exempt under the PRA’s catchall provision, section 6255, subdivision (a), 

“because the public interest served by not disclosing the records at this time 

clearly outweighs the public interest served by disclosure of the records.” 

On October 31, 2013, the ACLU filed a petition for writ of mandate in the 

superior court, seeking to compel the County to “comply with the [PRA]” and 

disclose the requested records for all nine lawsuits. The ACLU framed its request 
3

for the invoices as follows: “Current and former jail inmates have brought 

numerous lawsuits against the County and others for alleged excessive force. The 

County has retained a number of law firms to defend against these suits. It is 

believed that the selected law firms may have engaged in ‘scorched earth’ 

litigation tactics and dragged out cases even when a settlement was in the best 

interest of the County or when a settlement was likely. Given the issues raised by 

the allegations in these complaints and the use of taxpayer dollars to pay for the 

alleged use of scorched earth litigation tactics, the public has a right and interest in 

ensuring the transparent and efficient use of taxpayer money.” Defending such 

lawsuits, the plaintiffs estimated, could cost tens of millions of dollars. After a 

hearing on June 5, 2014, the court granted the ACLU’s petition. The court held 

that the County had failed to show the invoices were attorney-client privileged 

communications. As a result, the court ordered the County to release “the billing 

statements for the nine lawsuits identified in the July 1, 2013 []PRA request.” But 

“[t]o the extent these documents reflect an attorney’s legal opinion or advice, or 

reveal an attorney’s mental impressions or theories of the case,” the court held that

“such limited information may be redacted.” 

The County then filed its own petition for writ of mandate in the Court of 

Appeal, which granted the County’s petition and vacated the superior court’s 

order. The Court of Appeal found that “the invoices are confidential 

communications within the meaning of Evidence Code section 952,” and therefore 

“are exempt from disclosure under Government Code section 6254, subdivision 

(k).” Relying on our decision in Costco Wholesale Corp. v. Superior Court (2009) 

47 Cal.4th 725 (Costco), the appellate court concluded that “the proper focus in 

the privilege inquiry is not whether the communication contains an attorney’s 

opinion or advice, but whether the relationship is one of attorney-client and 

whether the communication was confidentially transmitted in the course of that 
4

relationship.” And “ ‘because the privilege protects a transmission irrespective of 

its content,’ ” the Court of Appeal held that “the invoices” — which “constituted 

information transmitted by the law firms to the County in the course of the 

representation” and in confidence — were confidential communications within the 

meaning of Evidence Code section 952. Given this conclusion, the Court of 

Appeal did not reach the parties’ contentions regarding application of the PRA’s 

catchall provision or Business and Professions Code sections 6148 and 6149. We 

then granted review.

II. DISCUSSION

The primary question raised in this case is whether invoices for legal 

services transmitted to a government agency by outside counsel are categorically 

protected by the attorney-client privilege and therefore exempt from disclosure 

under the PRA, and if not, whether any of the information sought by the ACLU is 

nonetheless covered by the privilege.

A. Statutory Scheme

1. PRA

The PRA and the California Constitution provide the public with a broad 

right of access to government information. (Sierra Club v. Superior Court (2013) 

57 Cal.4th 157, 164.) The PRA, enacted in 1968, grants access to public records 

held by state and local agencies. (§ 6250 et seq.) Modeled after the federal 

Freedom of Information Act (5 U.S.C. § 552 et seq.), the PRA was enacted for the 

purpose of increasing freedom of information by giving members of the public 

access to records in the possession of state and local agencies. (Filarsky v. 

Superior Court (2002) 28 Cal.4th 419, 425.) Such “access to information

concerning the conduct of the people’s business,” the Legislature declared, “is a 

fundamental and necessary right of every person in this state.” (§ 6250.)
5

Consistent with the Legislature’s purpose, the PRA broadly defines “public 

records” to 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.” (§ 6252, subd. (e).)

As the result of a 2004 initiative, Proposition 59, voters enshrined the 

PRA’s right of access to information in the state Constitution: “The people have 

the right of access to information concerning the conduct of the people’s business, 

and, therefore, . . . the writings of public officials and agencies shall be open to 

public scrutiny.” (Cal. Const., art. I, § 3, subd. (b)(1).) As amended by the 

initiative, the Constitution also directs that statutes “shall be broadly construed if it 

furthers the people’s right of access, and narrowly construed if it limits the right of 

access.” (Cal. Const., art. I, § 3, subd. (b)(2).)

Despite the value assigned to robust public disclosure of government 

records both in the California Constitution and in the PRA, two statutory 

exceptions nonetheless exist. The first is section 6255(a), the PRA’s catchall 

provision allowing a government agency to withhold a public record if it can 

demonstrate that “on the facts of the particular case the public interest served by 

not disclosing the record clearly outweighs the public interest served by disclosure 

of the record.” In determining the propriety of an agency’s reliance on the catchall 

provision to withhold public records, the burden of proof is on the agency “to 

demonstrate a clear overbalance” in favor of nondisclosure. (Michaelis, 

Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1071.) The 

second is section 6254, which lists certain categories of records exempt from PRA 

disclosure. These exemptions are largely concerned with protecting “ ‘the privacy 
6

of persons whose data or documents come into governmental possession.’ ” 

(Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282.)1 

Section 6254(k) is the PRA exemption at issue in this case. This provision 

allows agencies to withhold “[r]ecords, the disclosure of which is exempted or 

prohibited pursuant to federal or state law, including, but not limited to, provisions 

of the Evidence Code relating to privilege.” (§ 6254(k).)2 By “its reference to the 

privileges contained in the Evidence Code,” section 6254(k) “has made the 

attorney-client privilege applicable to public records.” (Roberts v. City of 

Palmdale (1993) 5 Cal.4th 363, 370 (Roberts).) This exemption, we have 

explained, emphasizes the Legislature’s purpose of affording “public entities the 

attorney-client privilege as to writings to the extent authorized by the Evidence 

Code.” (Id. at p. 380, footnote omitted.)

As with any of the PRA’s statutory exemptions, “the fact that parts of a 

requested document fall within the terms of an exemption does not justify

withholding the entire document.” (CBS, Inc. v. Block, supra, 42 Cal.3d at 

p. 653.) What the PRA appears to offer is a ready solution for records blending 

exempt and nonexempt information: “Any reasonably segregable portion of a 

 

1 The 2004 voter initiative preserved these exemptions. (See Cal. Const., 

art. I, § 3, subd. (b)(5); see also International Federation of Professional and 

Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 

329, fn. 2.)

2 As first enacted in 1968, section 6254(k) read: “Records the disclosure of 

which is exempted or prohibited pursuant to provisions of federal or state law, 

including, but not limited to, provisions of the Evidence Code relating to 

privilege.” (§ 6254(k), as enacted by Stats. 1968, ch. 1473, § 39, p. 2947.) In 

1981, the Legislature used identical language when repealing and reenacting 

section 6254(k). (Stats. 1981, ch. 684, §§ 1, 1.5, pp. 2484-2491.) The Legislature 

has since amended this subdivision only once, deleting the first use of the phrase

“provisions of” in 1991. (Stats. 1991, ch. 607, § 4, p. 2758.)
7

record shall be available for inspection by any person requesting the record after 

deletion of the portions that are exempted by law.” (§ 6253, subd. (a).) While this 

provision does not dictate which parts of a public record are privileged, it requires 

public agencies to use the equivalent of a surgical scalpel to separate those 

portions of a record subject to disclosure from privileged portions. At the same 

time, the statute places an express limit on this surgical approach: public agencies 

are not required to attempt selective disclosure of records that are not “reasonably 

segregable.” (Ibid.) To the extent this standard is ambiguous, the PRA must be 

construed in “ ‘whichever way will further the people’s right of access.’ ” (Ardon 

v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190; see also Cal. Const., art. I, 

§ 3, subd. (b)(2).) 

2. Evidence Code

The attorney-client privilege incorporated into the PRA by section 6254(k) 

is described in Evidence Code section 950 et seq., enacted in 1965. (See Evid. 

Code, div. 8, ch.4, art. 3 [“Lawyer-client Privilege”].) This privilege no doubt 

holds a special place in the law of our state. (See Mitchell v. Superior Court

(1984) 37 Cal.3d 591, 599 (Mitchell) [“The attorney-client privilege has been a 

hallmark of Anglo-American jurisprudence for almost 400 years.”].) And for 

good reason: its “fundamental purpose . . . is to safeguard the confidential 

relationship between clients and their attorneys so as to promote full and frank

discussion of the facts and tactics surrounding individual legal matters.” (Ibid. 

[“the public policy fostered by the privilege seeks to insure ‘the right of every 

person to freely and fully confer and confide in one having knowledge of the law, 

and skilled in its practice, in order that the former may have adequate advice and a 

proper defense’ ”].)
8

To this end, Evidence Code section 954 confers a privilege on the client “to 

refuse to disclose, and to prevent another from disclosing, a confidential 

communication between client and lawyer.” A “confidential communication,” 

moreover, is defined as “information transmitted between a client and his or her 

lawyer in the course of that relationship and in confidence by a means which, so 

far as the client is aware, discloses the information to no third persons other than 

those who are present to further the interest of the client in the consultation or 

those to whom disclosure is reasonably necessary for the transmission of the 

information or the accomplishment of the purpose for which the lawyer is 

consulted, and includes a legal opinion formed and the advice given by the lawyer 

in the course of that relationship.” (Evid. Code, § 952.)

B. Application to County’s Invoices for Legal Services

As with all questions of statutory interpretation, our foremost task is to give 

effect to the Legislature’s purpose. (See Tuolumne Jobs & Small Business 

Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) In doing so, we

analyze the statute’s text in its relevant context, as text so read tends to be the 

clearest, most cogent indicator of a specific provision’s purpose in the larger 

statutory scheme. We interpret relevant terms in light of their ordinary meaning, 

while also taking account of any related provisions and the overall structure of the 

statutory scheme to determine what interpretation best advances the Legislature’s 

underlying purpose. (See Nahrstedt v. Lakeside Village Condominium Assn.

(1994) 8 Cal.4th 361, 378.) 

Not surprisingly, the primary purpose of the Evidence Code provisions at 

issue in this case is to protect the confidential relationship between client and

attorney to promote frank discussion between the two. (See Mitchell, supra, 37 

Cal.3d at p. 599.) These provisions do so by prohibiting disclosure of any 
9

“confidential communication between client and lawyer.” (Evid. Code, § 954.) 

The Evidence Code also states that “ ‘confidential communication between client 

and lawyer’ means information transmitted between a client and his or her lawyer

in the course of that relationship and in confidence . . . , and includes a legal 

opinion formed and the advice given by the lawyer in the course of that 

relationship.” (Id., § 952; see also Costco, supra, 47 Cal.4th at p. 733 [“the 

privilege attaches to any legal advice given in the course of an attorney-client 

relationship”].) The key question, then, is this: Would treating invoices as 

sometimes nonprivileged undermine the fundamental purpose of the attorneyclient privilege?

The ACLU says no. Merely sending invoices to a client, the ACLU 

contends, does not always “further the purpose of legal representation.” Rather, 

invoices are meant to help a service provider secure payment for services 

rendered. The mere fact that an attorney chose to transmit his or her invoices in 

confidence is of no moment, according to the ACLU. Such invoices further a 

separate business purpose that is merely incidental to the attorney-client 

relationship. We agree –– but only up to a point. The attorney-client privilege 

only protects communications between attorney and client made for the purpose of 

seeking or delivering the attorney’s legal advice or representation. Evidence Code 

section 952 twice states that the privilege extends only to those communications 

made “in the course of [the attorney-client] relationship,” a construction 

suggesting a nexus between the communication and the attorney’s professional 

role.3 The Evidence Code also repeatedly refers to “consultation” between the 

attorney and client. (See id., § 951 [defining a “client” as someone who “consults 

 

3 The phrase “in the course of that relationship” has appeared unchanged in 

Evidence Code section 952 since its enactment in 1965. 
10

a lawyer for the purpose of retaining the lawyer or securing legal service or advice 

from him in his professional capacity”]; id., § 952 [defining “confidential 

communication between client and lawyer” as “information transmitted in 

confidence by a means which . . . discloses to no third persons other than those 

who are present to further the interest of the client in the consultation or to those to 

whom disclosure is reasonably necessary for . . . the accomplishment of the 

purpose for which the lawyer is consulted”].) 

These references underscore that the privilege does not apply to every 

single communication transmitted confidentially between lawyer and client. 

Rather, the heartland of the privilege protects those communications that bear 

some relationship to the attorney’s provision of legal consultation. (See Roberts, 

supra, 5 Cal.4th at p. 371 [explaining that “under the Evidence Code, the attorneyclient privilege applies to confidential communications within the scope of the 

attorney-client relationship” (italics added)]; see also Costco, supra, 47 Cal.4th at 

p. 743 (conc. opn. of George, C. J.) [Evid. Code § 952 “identifies a ‘ “confidential 

communication” ’ in general terms as meaning ‘information transmitted between a 

client and his or her lawyer in the course of that relationship,’ but the provision 

also supplies more specific examples of what is meant by adding that a 

confidential communication ‘includes a legal opinion formed and the advice given 

by the lawyer in the course of that relationship’ ” (italics omitted)].) 

Justice Werdegar’s dissenting opinion suggests that the Evidence Code’s 

definition of the attorney-client privilege forecloses any inquiry into whether a 

communication is related to legal consultation. Yet the Evidence Code’s 

definition of the privilege concerns not only the manner in which information is 

transmitted, but the nature of the communication. The statute treats the term 

“confidential communication between client and lawyer” as one that requires 

further definition, and the definition it provides extends only to that information 
11

transmitted “in the course of [the attorney-client] relationship.” (Evid. Code, §

952, italics added.) The same definition also refers to “those who are present to 

further the interest of the client in the consultation” and “the accomplishment of 

the purpose for which the lawyer is consulted. (Ibid., italics added.) A similar 

focus is plain in related definitions of the Evidence Code. For example, the statute 

defines “client” as someone who “consults a lawyer for the purpose of retaining 

the lawyer or securing legal service or advice from him in his professional 

capacity.” (Id., § 951.) And a “confidential communication between client and 

lawyer,” according to the statute, “includes a legal opinion formed and the advice 

given by the lawyer in the course of that relationship.” (Id., § 952.) These 

references cut against an understanding of the privilege in this context as 

encompassing every conceivable communication a client and attorney share, and 

instead link the privilege to communications that bear some relationship to the 

provision of legal consultation. 

Invoices for legal services are generally not communicated for the purpose 

of legal consultation. Rather, they are communicated for the purpose of billing the 

client and, to the extent they have no other purpose or effect, they fall outside the 

scope of an attorney’s professional representation. (See County of Los Angeles v. 

Superior Court (2012) 211 Cal.App.4th 57, 67 [explaining that “the dominant 

purpose for preparing the [invoices to the county] was not for use in litigation but 

as part of normal record keeping and to facilitate the payment of attorney fees on a 

regular basis”]; cf. Montebello Rose Co. v. Agricultural Labor Relations Bd.

(1981) 119 Cal.App.3d 1, 32 [labor negotiations, which could have been 

conducted by a nonattorney, “were not privileged unless the dominant purpose of 

the particular communication was to secure or render legal service or advice”].) 

While invoices may convey some very general information about the process 

through which a client obtains legal advice, their purpose is to ensure proper 
12

payment for services rendered, not to seek or deliver the attorney’s legal advice or 

representation.

This distinction is relevant because, as our opinion in Costco confirmed, 

not every communication between attorney and client is privileged solely because 

it is confidentially transmitted. Costco had retained a law firm to advise it on 

whether certain managers were exempt from wage and overtime laws. An 

attorney at the firm interviewed two Costco managers and then sent the company a 

confidential 22-page opinion letter. Several years later, some Costco employees 

filed a lawsuit claiming that Costco had misclassified and underpaid its managers. 

As part of that litigation, the plaintiffs tried to compel discovery of the attorney’s

opinion letter. Over Costco’s objection, the trial court ordered disclosure of the

letter, allowing portions of it containing the attorney’s impressions, observations, 

and opinions to be redacted. (Costco, supra, 47 Cal.4th at pp. 730-731.) The 

confidential opinion letter at issue in Costco was indisputably privileged, and the 

plaintiffs never claimed otherwise. (See id. at pp. 735-736 [the plaintiffs “never 

disputed” that Costco retained the law firm to provide Costco with “legal advice,” 

which was provided in the form of the opinion letter].) 

In ruling that Costco did not need to turn over this opinion letter, we took 

care to explain that the same rule would not apply to all communications between 

a lawyer and his or her client. The privilege, for example, “is not applicable when 

the attorney acts merely as a negotiator for the client or is providing business 

advice [citation]; in that case, the relationship between the parties to the 

communication is not one of attorney-client.” (Costco, supra, 47 Cal.4th at 

p. 735.) The same is true when a lawyer is billing his or her client: the 

relationship evokes an arm’s-length transaction between parties in the market for 

professional services more than it does the diligent but discreet conveyance of 

facts and advice that epitomizes the bond between lawyer and client. An 
13

organization may strongly oppose, and sternly resist, public disclosure of its legal 

bills, just as a business adviser or public relations consultant might do the same. 

But the extent of this resistance does not dictate the scope of the attorney-client 

privilege.

What Costco also reaffirmed is the longstanding principle that “a client 

cannot protect unprivileged information from discovery by transmitting it to an 

attorney,” though we noted that this “concern [was] not present here.” (Costco, 

supra, 47 Cal.4th at p. 735; see also Greyhound Corp. v. Superior Court (1961) 56 

Cal.2d 355, 397 [“ ‘Knowledge which is not otherwise privileged does not become 

so merely by being communicated to an attorney.’ ”].) Costco thus recognized 

that not all communications between attorney and client become privileged solely 

by virtue of the mode of communication (confidential versus not). And though 

Costco made this point with regard to information sent from client to attorney, we 

see no reason why the reverse situation would require a different rule. After all, a 

lawyer may well send a government client an e-mail that has nothing to do with 

legal advice. For example, a lawyer might e-mail details about a firm’s efforts to 

move to a newly constructed office building or host a political fundraiser. Even if 

these communications are confidential (as would be true for any e-mail 

communication), they are not made for the purpose of legal consultation and are 

therefore not protected by the attorney-client privilege. 

The same is true for billing invoices. 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. The mere fact that an 

attorney transmitted a communication to his or her client confidentially (in the 

sense that no one other than the recipient could see the communication) does not 

end the inquiry into whether the communication’s contents are protected by the 

attorney-client privilege. After all, just about every communication between a 
14

lawyer and client is intended to be kept private, regardless of whether the 

communication has any connection to legal consultation at all. Even the fact that 

the information communicated may have some ancillary bearing on an attorney’s 

relationship to a client (as information about an office move or political fundraiser 

might have) does not end our inquiry into whether the attorney-client privilege 

applies. Nor does the fact that an attorney would prefer to keep the information 

confidential (as most people would prefer for their emails).

What the inquiry turns on instead is the link between the content of the 

communication and the types of communication that the attorney-client privilege 

was designed to keep confidential. In 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. As Chief Justice George put it in his concurring 

opinion in Costco: “the communication also must occur ‘in the course of’ the 

attorney-client relationship (Evid. Code, § 952) — that is, the communication 

must have been made for the purpose of the legal representation.” (Costco, supra, 

47 Cal.4th at p. 742 (conc. opn. of George, C. J.).) Considering Evidence Code 

section 952 “as a whole,” continued Chief Justice George, it becomes “even 

clearer that the Legislature intended to extend the protection of the privilege solely 

to those communications between the lawyer and the client that are made for the 

purpose of seeking or delivering the lawyer’s legal advice or representation.” 

(Costco, 47 Cal.4th at p. 743 (conc. opn. of George, C. J.).) While Chief Justice 

George’s views are expressed in a concurring opinion, the opinion emphasizes a 

crucial distinction that is relevant here, between the opinion letter at issue in that 

case and the invoices at issue here. Unlike an opinion letter, a billing invoice is 

not “made for the purpose of the legal representation.” (Id. at p. 742.) 

But while billing invoices are generally not “made for the purpose of legal 

representation,” the information contained within certain invoices may be within 
15

the scope of the privilege. To the extent that billing information is conveyed “for 

the purpose of legal representation” –– perhaps to inform the client of the nature or 

amount of work occurring in connection with a pending legal issue –– such 

information lies in the heartland of the attorney-client privilege. And even if the 

information is more general, such as aggregate figures describing the total amount 

spent on continuing litigation during a given quarter or year, it may come close

enough to this heartland to threaten the confidentiality of information directly 

relevant to the attorney’s distinctive professional role. The attorney-client 

privilege protects the confidentiality of information in both those categories, even 

if the information happens to be transmitted in a document that is not itself 

categorically privileged. When a legal matter remains pending and active, the 

privilege encompasses everything in an invoice, including the amount of aggregate 

fees. This is because, even though the amount of money paid for legal services is 

generally not privileged, an invoice that shows a sudden uptick in spending “might 

very well reveal much of [a government agency]’s investigative efforts and trial 

strategy.” (Mitchell, supra, 37 Cal.3d at p. 610.) Midlitigation swings in 

spending, for example, could reveal an impending filing or outsized concern about 

a recent event. 

The same may not be true for fee totals in legal matters that concluded long 

ago. In contrast to information involving a pending case, a cumulative fee total for 

a long-completed matter does not always reveal the substance of legal 

consultation. The fact that the amounts in both cases were communicated in an 

invoice transmitted confidentially from lawyer to client does not automatically 

make this information privileged. Instead, the privilege turns on whether those 

amounts reveal anything about legal consultation. Asking an agency to disclose 

the cumulative amount it spent on long-concluded litigation –– with no ongoing 

litigation to shed light on the context from which such records are arising –– may 
16

communicate little or nothing about the substance of legal consultation. But when 

those same cumulative totals are communicated during ongoing litigation, this 

real-time disclosure of ongoing spending amounts can indirectly reveal clues about 

legal strategy, especially when multiple amounts over time are compared. 

Justice Werdegar is concerned that our opinion suggests the “scope of the 

privilege somehow wanes with the termination of the subject litigation.” But the

question at issue here is not, as Justice Werdegar suggests, whether privileged 

material remains privileged when “the attorney-client relationship has ended.” 

(Dis. opn., post, at p. 7.) Even while the scope of the attorney-client privilege 

remains constant over time, the same information (for example, the cumulative 

amount of money that was spent on a case) takes on a different significance if it is 

revealed during the course of active litigation. During active litigation, that 

information can threaten the confidentiality of legal consultation by revealing legal 

strategy. But there may come a point when this very same information no longer 

communicates anything privileged, because it no longer provides any insight into 

litigation strategy or legal consultation. 

Our conclusion that the privilege turns on content and purpose, not form, 

fits not only with the terms of the statute but also the law as it existed before the 

Evidence Code was enacted. The Evidence Code was meant to incorporate prior 

law on the attorney-client privilege. (See Cal. Law Revision Com. com., 29B 

pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. § 952, p. 307 [“The requirement 

that the communication be made in the course of the lawyer-client relationship and 

be confidential is in accord with existing law.”].) Before 1965, the longestablished rule in California was that the attorney-client privilege — then set 
17

forth in the Code of Civil Procedure4 — protected communications made for the 

purpose of the attorney’s professional representation. (See, e.g., Solon v. 

Lichtenstein (1952) 39 Cal.2d 75, 80 [“A communication to be privileged must 

have been made to an attorney acting in his professional capacity toward his 

client.”].)

Further support for this conclusion comes from the language and structure 

of a related statutory scheme. Business and Professions Code section 6148, 

subdivision (a), describes the information that a contract for legal services (i.e., a 

fee agreement) must generally contain. Subdivision (b), on the other hand, 

describes the information that attorney billing statements (such as invoices) must 

generally contain. (See id., § 6148, subd. (b).) But Business and Professions 

Code section 6149 states that only fee agreements “shall be deemed to be a 

confidential communication within the meaning of . . . Section 952 of the 

Evidence Code.” This section makes no mention of billing statements or invoices. 

The Legislature’s decision to define both fee agreements and billing statements in 

one section, while in the very next section subjecting only the former to the 

attorney-client privilege, suggests that the privilege was not intended to protect 

both fee agreements and invoices in the exact same way. (See Pasadena Police 

Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [“When the 

 

4 “An attorney cannot, without the consent of his client, be examined as to 

any communication made by the client to him, or his advice given thereon in the 

course of professional employment.” (Code Civ. Proc., former § 1881, subd. 2, 

enacted in 1872 and repealed by Stats. 1965, ch. 299, § 2, p. 1297 [enacting Evid. 

Code].)
18

Legislature ‘has employed a term or phrase in one place and excluded it in 

another, it should not be implied where excluded.’ ”].)5

These arguments help explain why California courts have generally 

presumed that invoices for legal services are not categorically privileged. (See, 

e.g., Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1326-

1327 [“we seriously doubt that all — or even most — of the information on each 

of the billing records proffered to the court was privileged”].) Indeed, disclosure 

of billing invoices is the norm in the federal courts in California, where “[f]ee 

information is generally not privileged.” (Federal Sav. & Loan Ins. Corp. v. Ferm

(9th Cir. 1990) 909 F.2d 372, 374; see also Tornay v. U.S. (9th Cir. 1988) 840 

F.2d 1424, 1426 [“Payment of fees is incidental to the attorney-client relationship, 

and does not usually involve disclosure of confidential communications arising 

from the professional relationship.”].) Our holding today is consistent with that 

approach — an approach with which the County, a frequent litigant in federal 

court, is undoubtedly familiar.

None of the County’s remaining arguments supports the conclusion that all 

information in attorney invoices is categorically privileged. In particular, the 

County observes that disclosure of invoices can provide adversaries a window into 

litigation strategies — “a road map as to how the matter is being litigated, or may 

be litigated in the future.” We are sensitive to the County’s concern here, but this 

concern does not require the rule that Court of Appeal established and that the 

 

5 The reason for this discrepancy, according to the County, is that invoices 

“so obviously met [Evidence Code section 952’s] definition of communications” 

that the Legislature saw no need to specify that they were privileged. We are not 

convinced. As explained above, we do not think Evidence Code section 952 

categorically protects invoices. And, in any event, whether it does is far from 

“obvious[].”
19

County insists on, which is a categorical bar on disclosure of a government 

agency’s expenditures for any legal matter, past or present, active or inactive, open 

or closed. Though the PRA carves out an exemption for privileged portions of 

government records, “[t]he fact that parts of a requested document fall within the 

terms of an exemption does not justify withholding the entire document.” (CBS, 

Inc. v. Block, supra, 42 Cal.3d at p. 653.) Instead, government agencies must 

disclose “[a]ny reasonably segregable portion” of a public record “after deletion of 

the portions that are exempted by law.” (§ 6253, subd. (a).) 
20

III. CONCLUSION

The imperative of protecting privileged communications between attorney 

and client –– and thereby promoting full and frank discussion between them –– is 

a defining feature of our law. This imperative does not require us to conclude —

as the Court of Appeal did here — that everything in a public agency’s invoices 

for legal services is categorically privileged. Instead, the contents of an 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. Accordingly, we reverse the judgment of the Court of Appeal 

and remand for proceedings consistent with our opinion.

CUÉLLAR, J.

WE CONCUR:

CHIN, J.

LIU, J.

KRUGER, J.
DISSENTING OPINION BY WERDEGAR, J.

The importance of the attorney-client evidentiary privilege to the proper 

functioning of the legal system in this state cannot be overstated. “The attorneyclient privilege has been a hallmark of Anglo-American jurisprudence for almost 

400 years. [Citations.] The privilege authorizes a client to refuse to disclose, and 

to prevent others from disclosing, confidential communications between attorney 

and client. (Evid. Code, § 950 et seq.) Clearly, the fundamental purpose behind 

the privilege is to safeguard the confidential relationship between clients and their 

attorneys so as to promote full and open discussion of the facts and tactics 

surrounding individual legal matters. [Citation.] In other words, the public policy 

fostered by the privilege seeks to insure ‘the right of every person to freely and 

fully confer and confide in one having knowledge of the law, and skilled in its 

practice, in order that the former may have adequate advice and a proper 

defense.’ ” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599, fn. omitted.) 

“Although exercise of the privilege may occasionally result in the suppression of 

relevant evidence, the Legislature of this state has determined that these concerns 

are outweighed by the importance of preserving confidentiality in the attorneyclient relationship.” (Ibid.)

With today’s decision, a majority of the court undermines this pillar of our 

jurisprudence, finding legal invoices sent from a law firm to its client, although 
2

initially protected by the attorney-client privilege, may lose such protection once 

the subject litigation is concluded. This conclusion finds no support in the plain 

meaning of the words of the attorney-client privilege as set forth in Evidence Code 

section 954,1 and are in fact contrary to a recent decision by this court interpreting 

the scope of the privilege. I respectfully dissent.

I.

The attorney-client privilege is set forth in section 954 and provides in 

pertinent part that a “client, whether or not a party, has a privilege to refuse to 

disclose, and to prevent another from disclosing, a confidential communication 

between client and lawyer . . . .” The phrase “ ‘confidential communication 

between client and lawyer’ ” is, as relevant here, defined in section 952 as 

“information transmitted between a client and his or her lawyer in the course of 

that relationship and in confidence . . . and includes a legal opinion formed and the 

advice given by the lawyer in the course of that relationship.” No question exists 

that the invoices at issue in this case comprise “information transmitted” between 

a law firm and its client, the Los Angeles County Board of Supervisors,

2 that the 

 

1 All statutory references are to the Evidence Code unless otherwise stated.

2 Although we may presume for purposes of argument the fee invoices 

considered here do not include a “legal opinion formed” or “advice given” within 

the course of that relationship, section 952’s use of the term “includes” means that 

the scope of the privilege is not limited to legal opinions and advice. “ ‘[I]ncludes’ 

[is] ordinarily a term of enlargement rather than limitation.” (Ornelas v. Randolph

(1993) 4 Cal.4th 1095, 1101.) “The ‘statutory definition of a thing as “including” 

certain things does not necessarily place thereon a meaning limited to the 

inclusions.’ ” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774.) The majority 

does not dispute that the attorney-client privilege covers more than just legal 

opinions and advice, but nevertheless asserts language in various sub-clauses of 

section 952 mean the attorney-client privilege covers only “communications that 

bear some relationship to the provision of legal consultation.” (Maj. opn., ante, 

(footnote continued on next page)
3

information was generated within the course of the attorney-client relationship, 

and that the invoices were prepared and transmitted in confidence. As such, the 

invoices are privileged, and thus not subject to disclosure under the Public 

Records Act. (Gov. Code, § 6254, subd. (k).)3

The majority reaches a different conclusion by embellishing the words of 

the statutory privilege to discover a heretofore hidden meaning. According to the 

majority, the “key question” is: “Would treating invoices as sometimes 

nonprivileged undermine the fundamental purpose of the attorney-client 

privilege?” (Maj. opn., ante, at p. 9, italics added.) The opinion then reasons the 

privilege protects only those “communications between attorney and client made 

for the purpose of seeking or delivering the attorney’s legal advice or 

representation.” (Ibid., italics added.) Therefore, concludes the majority, “the 

privilege does not apply to every single communication transmitted confidentially 

between lawyer and client. Rather, the heartland of the privilege protects those 

communications that bear some relationship to the attorney’s provision of legal 

consultation.” (Id. at p. 10, italics added.) 

 

(footnote continued from previous page)

p. 10.) As I explain, post, this interpretation of sections 954 and 952 is far too 

narrow and contrary to existing authority.

3 Government Code section 6254, subdivision (k) states that the Public 

Records Act does not require disclosure of the following records: “Records, the 

disclosure of which is exempted or prohibited pursuant to federal or state law, 

including, but not limited to, provisions of the Evidence Code relating to 

privilege.” (Italics added.) “By its reference to the privileges contained in the 

Evidence Code, therefore, the Public Records Act has made the attorney-client 

privilege applicable to public records.” (Roberts v. City of Palmdale (1993) 5 

Cal.4th 363, 370.)
4

The majority’s decision to add consideration of a communication’s purpose 

as an additional, nonstatutory element to the Legislature’s definition of a 

“confidential communication” is unsupported in law. Absent those rare situations 

in which the attorney-client privilege facilitates a person’s constitutional rights 

under the Sixth Amendment,4 the evidentiary privilege at issue in this case is 

statutory only. As we have recognized, “[o]ur deference to the Legislature is 

particularly necessary when we are called upon to interpret the attorney-client 

privilege, because the Legislature has determined that evidentiary privileges shall 

be available only as defined by statute. (Evid. Code, § 911.) Courts may not add 

to the statutory privileges except as required by state or federal constitutional law 

[citations], nor may courts imply unwritten exceptions to existing statutory 

privileges.” (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 373, italics 

added.) As the California Law Revision Commission has commented, “privileges 

are not recognized in the absence of statute,” and “[t]his is one of the few 

instances where the Evidence Code precludes the courts from elaborating upon the 

statutory scheme.” (Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. 

Code, foll. § 911, at p. 219.)

This court recently spoke to the scope of the attorney-client privilege in 

Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725 (Costco). In 

Costco, the issue, as in the instant case, concerned a communication between a 

lawyer and client that arguably contained both confidential information (in the 

form of legal opinions) and nonconfidential information (such as facts obtained 

 

4 See, e.g., Barber v. Municipal Court (1979) 24 Cal.3d 742, 751 (“if an 

accused is to derive the full benefits of his [constitutional] right to counsel, he 

must have the assurance of confidentiality and privacy of communication with his 

attorney”), relying on Fisher v. United States (1976) 425 U.S. 391, 403.
5

from witnesses). The Costco plaintiffs contended they were entitled to discovery 

of the nonprivileged portions of a letter legal counsel sent to the defendant. 

Interpreting sections 952 and 954, this court unanimously rejected the claim, 

explaining that “[t]he attorney-client privilege attaches to a confidential 

communication between the attorney and the client and bars discovery of the 

communication irrespective of whether it includes unprivileged material. As we 

explained in Mitchell v. Superior Court, supra, 37 Cal.3d at page 600: ‘[T]he 

privilege covers the transmission of documents which are available to the public, 

and not merely information in the sole possession of the attorney or client. In this 

regard, it is the actual fact of the transmission which merits protection, since 

discovery of the transmission of specific public documents might very well reveal 

the transmitter’s intended strategy.’ ” (Costco, supra, at p. 734, italics added.) 

Further, “ ‘[n]either the statutes articulating the attorney-client privilege nor the 

cases which have interpreted it make any differentiation between “factual” and 

“legal” information.’ ” (Ibid.)

The majority seemingly embraces the notion that courts may parse a legal 

communication to permit disclosure of those parts that were not “made for the 

purpose of legal consultation” (maj. opn., ante, at p. 13), but strains to distinguish 

Costco, supra, 47 Cal.4th 725, unconvincingly suggesting that when an attorney 

bills a client for legal services rendered, he or she steps outside the role of a 

lawyer and into the role of accountant. (Maj. opn., ante, p. 12 [“the relationship 

evokes an arm’s-length transaction between parties in the market for professional 

services more than it does the diligent but discreet conveyance of facts and advice 

that epitomizes the bond between lawyer and client”].) Accordingly, reasons the 

majority, legal billing invoices may fall outside the protection of the attorneyclient privilege because they “are not made for the purpose of legal consultation.” 

(Id., at p. 13.) But this is not a situation in which an attorney is acting as 
6

something other than a legal representative, such as a real estate agent or business 

advisor; the invoice in question was for legal services rendered.

More to the point, the majority’s line of analysis ignores the core reasoning 

of Costco that section 954 prohibits courts from parsing a communication between 

lawyer and client in order that those parts not involving a legal opinion or advice 

can be disclosed. As Costco explained, despite what might be the dominant 

purpose of a communication, “when the communication is a confidential one 

between attorney and client, the entire communication, including its recitation or 

summary of factual material, is privileged.” (Costco, supra, 47 Cal.4th at p. 736, 

italics added.) Costco’s analysis, applied here, leads inexorably to the conclusion 

that the legal invoices at issue are privileged under sections 952 and 954.5

Even more pernicious than the majority’s improper addition of a 

nonstatutory prerequisite to the attorney-client privilege, and its unconvincing 

attempt to distinguish Costco, supra, 47 Cal.4th 725, is its suggestion that the 

protective scope of the privilege somehow wanes with the termination of the 

subject litigation. Thus, the majority opines that “[w]hen a legal matter remains 

pending and active, the privilege encompasses everything in an invoice—

 

5 To the extent the majority relies on former Chief Justice George’s 

concurring opinion in Costco (maj. opn, ante, at pp. 13–14), it mischaracterizes his 

views. (Costco, supra, 47 Cal.4th at pp. 741–744 conc. opn. of George, C. J.). In 

a separate opinion, former Chief Justice George distinguished the situation in 

which information is transmitted between the client and the lawyer in the course of 

the attorney-client relationship, which information is privileged, from the situation 

in which information is communicated to an attorney outside the context of an 

attorney-client relationship, which information is unprivileged. “[A] 

communication in the context of section 952 need not concern litigation; rather it 

suffices that the communication consist of information transmitted between the 

client and the lawyer within the scope of the attorney-client relationship.” (Id. at 

p. 743 (conc. opn. of George, C. J.).) 
7

including the amount of aggregate fees.” (Maj. opn., ante, at p. 15.) But the 

majority then suggests a more limited rule of privilege may apply once the 

litigation ends, saying that “[t]he same may not be true for fee totals in legal 

matters that concluded long ago.” (Ibid.) That the majority fails to cite any 

language in sections 952 or 954 supporting such a rule is unsurprising, for nothing 

in the Evidence Code supports the notion that the reach of the attorney-client 

privilege is different for pending litigation versus legal matters that have 

concluded. 

Indeed, legal authority is to the contrary. In Littlefield v. Superior Court

(1982) 136 Cal.App.3d 477, a defendant in a criminal case sought a writ of 

mandate to force his codefendant to testify and reveal confidential conversations 

he had with his lawyer, the Los Angeles County Public Defender. (It was the 

defendant’s contention the public defender had disclosed facts about the alleged 

murders to the codefendant, which allowed him to fabricate testimony detrimental 

to the defendant.) Although the defendant acknowledged the communications 

were presumptively protected by the attorney-client privilege, he argued “that 

privilege may be deemed attenuated because the attorney/client relationship is 

‘near an end.’ ” (Id. at p. 481.) The appellate court properly disagreed, explaining 

that “the attorney/client privilege continues even after the end of threat of 

punishment” (id. at p. 482), and that “[n]othing in the statutes controlling the 

privilege suggests it is to be limited or diminished in importance as a function of 

the continuance of the relationship that existed at the time of the confidential 

communications herein sought” (ibid.). In other words, the protective power of 

the attorney-client privilege is not reduced simply because the attorney-client 

relationship has ended or is about to end. (Cf. HLC Properties, Ltd. v. Superior 

Court (2005) 35 Cal.4th 54, 66 [attorney-client privilege continues to protect 
8

covered communications until no person or entity exists who is statutorily 

authorized to assert it].)

Secondary sources are even more pointed. The attorney-client privilege 

“attaches upon the initial consultation . . . and continues beyond the end of the 

attorney-client relationship for so long as a ‘holder’ is in existence.” (Vapnek et 

al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2003) 

¶ 7:265, p. 7–114 (Aug. 2016 Update).) “The right to claim the attorney-client 

privilege is not limited to the litigation or controversy in the course of which a 

protected communication was made. It survives the termination of litigation and 

continues even after the threat of liability or punishment has passed.” (Id., 

¶ 7:269, p. 7–115, italics added.)

The majority’s suggestion the protective power of the attorney-client 

privilege under section 954 “may not” (maj. opn., ante, at p. 15) continue to

encompass all portions of a document that previously qualified as a “confidential 

communication” under section 952 is mischievous in the extreme. Following 

today’s decision, attorneys in this state must counsel their clients that confidential 

communications between lawyer and client, previously protected by the attorneyclient privilege, may be forced into the open by interested parties once the subject 

litigation has concluded. If a limiting principle applies to this new rule, it is not 

perceptible to me.6

 

6 The majority confusingly asserts “the scope of the attorney-client privilege 

remains constant over time,” but that, after an undetermined period of time, 

privileged “information . . . takes on a different significance” (maj. opn., ante, 

p. 16, italics added), such that it can lose its confidential status. But if the scope of 

the privilege is constant over time, how information—once privileged—

nevertheless loses its protected status is unexplained by the majority. If the 

majority is saying that a court may refuse to recognize the privileged status of 

once-privileged information if it determines the information is no longer of 

(footnote continued on next page)
9

Nor is it any saving grace that “disclosure of billing invoices is the norm in 

the federal courts in California, where ‘[f]ee information is generally not 

privileged.’ ” (Maj. opn, ante, at p. 18.) Although by this argument the majority 

suggests that a strong weight of legal opinion backing its views exists in the 

federal universe, such support is ephemeral. The cases cited by the majority rely 

on Federal Rule of Evidence 501, which simply incorporates federal common 

law.7 By contrast, the scope of the attorney-client privilege in California state 

courts is governed by the detailed and specific definition of a “confidential 

communication” as set forth in section 952. The majority’s comparison of apples 

to oranges is thus unpersuasive.

II.

As noted above, the conclusion reached by the majority today is 

inconsistent with our interpretation of section 952 in Costco, supra, 47 Cal.4th 

725. But even setting Costco aside, this court is simply not free to add elements 

and prerequisites to a statutory rule of evidentiary privilege. Whether it might be 

 

(footnote continued from previous page)

strategic value to a litigant, I disagree, and further observe the majority cites no 

authority for this remarkable position.

7 Rule 501 of the Federal Rules of Evidence (28 U.S.C.) states in pertinent 

part: “The common law—as interpreted by United States courts in the light of 

reason and experience—governs a claim of privilege unless any of the following 

provides otherwise:

 • the United States Constitution;

 • a federal statute; or

 • rules prescribed by the Supreme Court.”

But the same rule goes on to suggest the primacy of state law rules of 

privilege, providing that, “in a civil case, state law governs privilege regarding a 

claim or defense for which state law supplies the rule of decision.” (Ibid., italics 

added.)
10

wise policy to find a “confidential communication” within the meaning of section 

952 must be one “made for the purpose of seeking or delivering the attorney’s

legal advice or representation” (maj. opn., ante, at p. 9), is a question more 

properly consigned to the discretion of the Legislature and not this court.

I dissent.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Los Angeles County Board of Supervisors v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 235 Cal.App.4th 1154

Rehearing Granted

__________________________________________________________________________________

Opinion No. S226645

Date Filed: December 29, 2016

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Luis A. Lavin

__________________________________________________________________________________

Counsel:

John F. Kratli, Mark J. Saladino and Mary C. Wickham, County Counsel, Roger H. Granbo, Assistant 

County Counsel, Jonathan McCaverty, Deputy County Counsel; Greines, Martin, Stein & Richland, 

Timothy T. Coates and Barbara W. Ravitz for Petitioners.

Horvitz & Levy, Lisa Perrochet, Steven S. Fleischman and Jean M. Doherty for Association of Southern 

California Defense Counsel as Amicus Curiae on behalf of Petitioners.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici 

Curiae on behalf of Petitioners.

Keith J. Bray; Dannis Woliver Kelley, Sue Ann Salmon Evans and William B. Tunick for Education Legal 

Alliance of the California School Boards Association as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Peter J. Eliasberg; Davis Wright Tremaine, Jennifer L. Brockett, Nicolas A. Jampol, Rochelle L. Wilcox, 

Colin D. Wells and Diana Palacios for Real Parties in Interest.

Reuben Raucher & Blum and Stephen L. Raucher for Beverly Hills Bar Association as Amicus Curiae on 

behalf of Real Parties in Interest.

Tom Myers and Arti Bhimani for AIDS Healthcare Foundation as Amicus Curiae on behalf of Real Parties 

in Interest.

Ram, Olson, Cereghino & Kopczynski and Karl Olson for Los Angeles Times Communications LLC, 

McClatchy Newspapers, Inc., Gannett, First Amendment Coalition, California Broadcasters Association 

and California Newspapers Publishers Associaiton as Amici Curiae on behalf of Real Parties in Interest.
Page 2 – S226645 – counsel continued

Counsel:

Arthur S. Pugsley, Melissa Kelly; Joshua R. Purtle and Jaclyn H. Prange for Los Angeles Waterkeeper and 

Natural Resources Defense Council as Amici Curiae on behalf of Real Parties in Interest.

Law Office of Chad D. Morgan and Chad D. Morgan for Leane Lee and Coalition of Anaheim Taxpayers 

for Economic Responsibility as Amici Curiae on behalf of Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Timothy T. Coates

Greines, Martin, Stein & Richland

5900 Wilshire Boulevard, 12th Floor

Los Angeles, CA 90036

(310) 859-7811

Rochelle L. Wilcox

Davis Wright Tremaine

865 South Figueroa, Suite 2400

Los Angeles, CA 90017

(213) 633-6800