Jan. 8, 2013 – A Wisconsin Supreme Court majority has ruled that a county must hand over unredacted copies of legal bills to a newspaper under the state’s public records law.
Specifically, a majority (4-3) ruled in Juneau County Star-Times v. Juneau County, 2013 WI 4 (Jan. 8, 2013), that Juneau County must give the Juneau County Star-Times unredacted copies of law firm billing invoices for work the firm did to defend the county and the county sheriff.
The majority says the decision has no impact on privileged communications, but one dissenting justice fears the decision will have “negative ramifications for the practice of law.”
Juneau County tendered its defense of the county’s sheriff to Wisconsin County Mutual Insurance Company, which retained the Crivello Carlson law firm to represent the county. Thus, an attorney-client relationship was created between the law firm and the county.
The law firm sent billing invoices, which included descriptions of the legal services rendered, to Wisconsin County Mutual as the county’s insurer. A local newspaper, the Juneau County Star-Times, requested the billing invoices pursuant to Wis. Stat. section 19.36(3).
This “contractors’ records” provision requires public entities to make available for inspection “any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority.”
The county supplied the newspaper with copies of the law firm’s itemized bills, but redacted portions the county believed were protected by the attorney-client privilege.
In an action for mandamus and declaratory relief, the newspaper argued that unredacted copies of the law firm’s billing invoices were subject to public inspection because the legal bills arose from the county’s insurance contract with Wisconsin County Mutual.
A circuit court ruled that section 19.36(3) did not apply because the contract at issue was between the insurance company and the law firm, not the county and the law firm, and in any event, the invoices were properly redacted to protect attorney-client privilege.
The court of appeals reversed, ruling section 19.36(3) applied. It also ruled the newspaper should have access to unredacted copies of the invoices, because the county failed to prove that redacted information qualified as privileged attorney-client communications.
A Tripartite Relationship
A supreme court majority – Chief Justice Shirley Abrahamson, and Justices Ann Walsh Bradley, Patrick Crooks, and Patience Roggensack – upheld the appeals court ruling, concluding that the law firm’s billing invoices were contractors’ records under section 19.36(3).
According to the majority opinion, the liability insurance policy gave birth to a “tripartite relationship” creating contractual relationships between the county and the insurance company, the insurance company and the law firm, and the law firm and the county.
“To characterize the invoices as solely private records under an agreement between the insurance company and the law firm is to turn a blind eye to the realities of the relationship between the County, the insurance company, and the law firm,” the chief justice wrote.
However, the majority did not reach the question of whether the law firm billing invoices should be redacted based on the attorney-client privilege, because the county did not seek review of that issue. Thus, the newspaper will get unredacted legal billing records.
Impacts on Attorney-Client Privilege?
Justice Patience Roggensack concurred with the majority but wrote separately to reiterate that the majority’s decision “does nothing to alter the rules governing attorney-client privilege, attorney work-product, or any other duties involving attorney confidentiality.”
But Justice David Prosser disagreed. “The majority opinion permits Wisconsin’s public records law to breach privileged communications, contrary to sound public policy and the text of the public records statute,” Justice Prosser wrote. “Because I believe the opinion has serious negative ramifications for the practice of law, I respectfully dissent.”
Justice Prosser argued that the contract between the insurance company and the law firm did not trigger public records law, because the county was not a direct party to the contract.
In his dissenting opinion, Justice Prosser also explained that attorney billing records are protected by attorney-client privilege if they reveal the nature of the services provided, as they did in this case, or substantive communications between lawyer and client.
“The likely result of this case will be to force changes in billing practice,” Justice Prosser wrote. “In the future, legal invoices related to an ‘authority’ may be sanitized so that they provide insurers and public entity clients with no information except the hours worked and the amount owed as well as an invitation to discuss the details orally.”
Justices Annette Ziegler and Michael Gableman agreed with Justice Prosser, joining his dissent, but denounced any inference that section 19.36(3) requires disclosure of records regardless of attorney-client privilege.
“[T]he majority opinion does not decide whether attorney-client privilege may bar production of these documents,” Justice Ziegler wrote. “Thus, the majority opinion could have limited usefulness as it does not address a scenario where attorney-client privilege is at issue.”