SEE DISSENTING OPINION.

Filed 12/29/16 (reposted to delete inadvertent underlining s )



## 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 COUNT Y, ) ) 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 confidenti al 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, an d 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 invoice s 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 privilege2

therefore protects the confidentiality of invoices for work in pending and active leg al matters.
I. B ACKGROUND 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 Superv isors 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 con nectio n with nine different lawsuits alleging excessive force against jail
inmates. In a letter dated July 26, 2013, t he County agreed to produce c opies of the requested invoices related to three such lawsuits that were no longer pending, with attorney

- c lient 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, w hich 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 cit es 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
clea rly outweighs the public interest served by disclosure of the records

. ” On October 31, 2013, t he ACLU filed a petition for writ of mandate in the superior court, seeking to compel t he County to “comply with the [ PRA]” and disclose the requested records f or all nine lawsuits. The ACLU framed its request3

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 de fend 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 is sues 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.” Defen ding such lawsuits, the plaintiffs estimated, could cost tens of millions of dollars. After a hearing on June 5, 2014, t he court granted the ACLU’s petition

. The court held that the County had failed to show the invoices were attorney

- client privileged

c ommunications. 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.”
T h e 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). ” Re lying 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 w hether the relationship is one of attorney

- client and whether the communication was confidentially transmitted in the course of that4

relationship. ” And “ ‘ because the privilege protects a transmission irrespective of
its content ,’ ” the Court of Appeal he ld 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 conclu sion, the Court of Appeal did not reach the parties’ contention s regarding application of the PRA’s
catchall provision or Business an d Professions Code sections 6148 and 6149

. We then granted review.
II. D ISCUSSION The primary question raised in this cas e 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 sough t 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, 16 4.) The PRA, enacted in 1968, grants access to public records held by state and local ag encies. (§ 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

conce rning the conduct of the people’ s business ,” the Legisl ature declared, “ is a fundamental and necessary right of ev ery person in this state.” (§ 6250.)5

Consistent with the Legislature’s purpose , the PRA broadly defines “public records” to include “any writing containing information relati ng 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 i nformation in the state Constitution: “The people have the right of access to information concerning the con duct 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 cons trued if it furthers the people’ s right of access, and narrowly construed if it limits the right of

ac cess.” (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 privacy6

of persons whose data or documents come into government al 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 pri vilege 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 th at parts of a requested document fall within the terms of an exemption does not justify withholding the entire docu ment.” ( CBS, Inc. v. Block , supra , 42 Cal.3d at
p. 65 3.) 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. 294 7.) In 1981, the Legislature used identical language when repealing and re enacting section 6254(k). (Stats. 1981, ch. 684, § § 1, 1.5, p p

. 248 4

- 2491 .) The Legislature has since amended this subdivisio n only once, deleting the first use of the phrase “pro visions of” in 1991. (Stats. 1991, ch. 607, § 4, p. 2758.)7

record shall be available for inspection by any per son 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 th at are not “reasonably segregable.” ( Ibi d. ) 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. C onst., 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 Pri vilege”].) 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 jur isprudence for almost 400 year s.”].) And for good reason: its “ fundamental purpose . . . is to safeguard the confidential relationship between clients and their attorney s 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
prope r 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 forme d 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 Legislatur e’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 p rovision’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 confident ial re lationship between client and attorney to promote frank discussi on between the two

. (See Mitchell , supra , 37 Cal.3d at p. 599.) These provisions do so by prohibiting disclosure of any9

“ confidential communication b etween 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 opin ion 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 q uestion, then, is this: Would treating invoices as sometimes nonprivileged undermine the fundamental purpose of the attorney

client 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 invoice s 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

s eekin g 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 bet ween 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 pers ons 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 under score 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 leg al consultation. (See Roberts , supra , 5 Cal.4th at p. 371 [explaining that “under the Evidence Code, the attorney

client privilege applies to confidential communications within the scope of the attorney

- client relationship” (italics added)]; see also Cost co , 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 Wer degar’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 o nly to that information11

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 a ccomplishment 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 b y 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 an d, 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
pur pose for preparin g 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 informat ion about the process through which a client obtains legal advice, their purpose is to ensure proper12

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

at torney 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 t hat 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 c ommunications 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 partie s 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 : t he 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

. An13

organization may strongly oppose, and sternly resist, public disclosure of its legal bills, just as a business advi ser 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 infor mation 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 oth erwise 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 d o 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
communica tion), 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 invo ice 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 communic ation) 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 a14

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

commu nication 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) do es 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 b etween 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 t han some unrelated or ancillary purpose. As Chief Justice George put it in his concurring opinion in Costco : “ the communication also must occu r ‘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 Legislatur e 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 s eeking 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. Unlik e 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 invo ices may be within15

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 inf ormation 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, eve n 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 invol ving 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 do es not automatically make this information privileged. Instead, the privilege turns on whether those amounts reveal anything about legal consultation. A sking an agency to disclose
the cumulative amount it spent on long

- concluded litigation

–– with no ong oing litigation to shed light on the context from which such records are arising

–– may16

communicate little or nothing about the substance of legal consultation. But when
those same cumulative totals are communicated during ongoing litigation , this
real

- ti me 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 th e 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 s cope 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. Durin g 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 Ev idence 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 lawye r

- client relationship and be confidential is in accord with existing law.”].) Before 1965, the long

established rule in California was that the attorney

- client privilege

— then set17

forth in the Code of Civil Procedure 4

— 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 s upport 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 generall y 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 agreem ents “ 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
O ff icers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [“When the

4 “ An attorney cannot, withou t the consent of his client, be ex amined as to any communica tion made by the client to him, or his advice given thereo n 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. C ode].)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. 199 0) 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
fro m the professional rela tionship. ” ].) 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 a ttorney 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 futu re.” 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 ma tter, 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 th at parts of a requested document fall within the terms of an exemption does not justify withhold ing the entire document.” ( CBS,
Inc. v. Block , supra , 42 Cal.3d at p. 65 3.) 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. C ONCLUSION 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

consu ltation 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 proce edings consistent with our opinion.
C UÉLLAR , J.
W E C ONCUR :
C HIN , J. L IU , J. K RUGER , J.DISSENTING OPINION B Y 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 attorney

client 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 comm unications 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 f acts 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 skill ed 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 attorney

client 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, although2

initially protected by the attorney

- client privilege, may lose such protection once the subject litigation is concluded. This conclusion find s no support in the plai n 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 privile ge 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 opin ion 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 pr esume 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 var ious 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
Recor ds 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 th e 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 purs uant 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 attor ney

- 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 purp ose 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 Legis lature 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 imp ly 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 o f 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 infor mation (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 irrespectiv e 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.’ ” ( Cost co , 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 seemin gly 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, unconv incingly 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 parti es 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 pro tection of the attorney

client 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 as6

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 cl ient 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 ent ire 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 pri vileged 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 th at 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 i n 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 transmi tted 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

- clie nt relationship.” ( Id. at p. 743 (conc. opn. of George, C. J.).)7

including the amoun t of aggregate fees.” (Maj. opn., ante , at p. 1 5 .) 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.” ( Ibi d .) 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 confidentia l 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

t o 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 . a t 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 lim ited 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 protect8

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

t oday’s decision, attorneys in this state must counsel their clients that confidential communications between lawyer and client, previously protected by the attorney

client privilege, may be forced into the open by interested parties once the subject litiga tion 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

. . . ta kes 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 un explained 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 C ostco 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 R ule 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, pro viding 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 p urpose 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.
W ERDEGAR , J.

W E C ONCUR :

C ANTIL - S AKA UYE , C. J. C ORRIGAN , 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: Dece mber 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 & Lev y, 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 f

or 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 Asso ciation 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 Comm unications 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 co ntinued

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. Mo rgan 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