11.7 Lawyers’ Bills
| Library | The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.) |
11.7 LAWYERS' BILLS
11.701 General Rule. Although the privilege rarely protects retainer arrangements or the amount that a lawyer has billed the client, the bills themselves
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sometimes contain substantive information that would reveal the content of privileged communications between clients and their lawyers.
Some courts articulate a general approach that might be appropriate in the particular case, but should not be applied to all bills. Thus, some courts have declined to apply the privilege to:
| • | Dates of service and identity of the lawyers providing the service; 57 | |
| • | Billing records; 58 | |
| • | General subject matter of a billing statement; 59 | |
| • | Expense reports; 60 | |
| • | Estate lawyer's fee expense itemization; 61 | |
| • | Hourly statements. 62 |
11.702 Privilege for Portions of Bills. Courts properly considering the privileged status of bills take a more nuanced approach. These courts acknowledge the difference between a boilerplate retainer letter (which generally does not deserve privilege protection) and detailed billing records (which might in whole or in part deserve protection). 63
In 2005, the Eastern District of Louisiana articulated this approach.
The amounts paid, the numbers of hours billed, the dates on which lawyers worked and the billing rates applied are in no way privileged or otherwise protected from discovery. On the other hand, descriptive entries on lawyers' bills may conceivably reveal privileged communications or lawyer work product. For example,
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the notation "legal research" on a lawyer's bill is a fact, not a privileged communication or work product, but a lengthy description of that research which reveals the content of a confidential attorney-client or joint defense communication or the work product mental impressions, strategies, opinions or legal theories of the billing attorney may be privileged. Thus, defendants are hereby permitted to redact from the materials they produce and exclude from these interrogatory answers all privileged matters. 64
Other courts take the same approach. 65
Courts taking this more subtle approach acknowledge that a lawyer's bill might essentially disclose (or reflect in some detailed way) the content of privileged communications. Such bills or portions of bills thus generally would deserve protection under the attorney-client privilege or the opinion work product doctrine. 66
A small number of courts apply this principle to a lawyer's entire bill. For instance, one court protected a lawyer's complete invoice.
Plaintiff asserts that its billing invoices contain "highly-detailed descriptions of the work performed by counsel in representing Plaintiff, and are therefore rife with information subject to attorney-client privilege and work product protection.". . . The Court finds this assertion sufficient to warrant application of the attorney-client privilege to Plaintiff's billing invoices. 67
It is far more common for courts to protect only portions of a lawyer's bill. Hardly any lawyer is conscientious enough to describe each hour of service in such detail as to reflect privileged communications or the lawyer's strategy. Thus, courts usually decline to protect a lawyer's entire bill, but instead acknowledge that "[w]here billing statements contain descriptions of legal services that reveal confidential communications, courts have found the privilege protects those portions of the bills." 68 As one court explained,
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the notation "legal research" on a lawyer's bill is a fact, not a privileged communication or work product, but a lengthy description of that research which reveals the content of a confidential attorney-client or joint defense communication or the work product mental impressions, strategies, opinions or legal theories of the billing attorney may be privileged. 69
Some courts undertaking this subtle analysis also focus on the amount of time the lawyer spent performing certain services.
To be sure, most courts take the attitude exhibited by the Southern District of Ohio in a 2010 case: "I also note that statements regarding generally what counsel did for a specific period of time (i.e. 'prepared summary judgment reply') are not privileged or work product." 70 However, other courts take a more protective attitude. For instance, just a few months earlier, the Northern District of New York, analyzing a FOIA claim, concluding that certain "attorney time records constitute privileged information." 71 The court pointed to the time lawyers spent preparing witness declarations, explaining that...
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