WisBar News: Public records law requires disclosure of law firm invoices for county's defense:

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  • Public records law requires disclosure of law firm invoices for county's defense

    A state appeals court says law firm invoices are considered “public records” – and subject to an open records request – because they were “collected under” an insurance contract entered into by the county. The county obtained insurance for legal defense in disciplinary matters

    Joe Forward

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    Public records law requires disclosure of law 
firm invoices for 
county’s defense Oct. 31, 2011 – A newspaper that requested law firm bills for legal services rendered to Juneau County will get them free of redaction, a state appeals court has ruled.

    A lawyer with the Crivello Carlson law firm served as counsel to Juneau County’s sheriff in connection with a disciplinary matter. Juneau County retained the lawyer under its insurance contract, which covered the county’s defense in this type of disciplinary proceeding.

    The lawyer generated itemized bills for the legal services rendered and submitted them to the county’s insurer, Wisconsin County Mutual Insurance Corporation. The Juneau County Star-Times newspaper requested the bills under Wisconsin’s public records law.

    Wis. Stat. section 19.36(3) provides that government entities must supply a requestor with “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 lawyer’s itemized bills, but redacted portions the county believed were protected by the attorney-client privilege.

    The newspaper sued to get other records that were not released and copies free of redaction. The circuit court ruled that section 19.36(3) does not apply to invoices – the county did not have to release them – and, in any event, the redactions protected privileged information.

    However, the District IV Wisconsin Court of Appeals reversed in Juneau County Star-Times v. Juneau County, 2010AP2313 (Oct. 27, 2011). The appeals court ruled that section 19.36(3) “applies to the invoices as records collected by the insurer under the contract of insurance.”

    It also ruled that the county “failed to point to evidence sufficient to survive summary judgment on the question of whether its redactions qualify as attorney-client privileged information,” and directed the circuit court to order release of unredacted copies of the law firm invoices.

    “We conclude that there is no reasonable argument that under the terms of the insurance contract the parties did not anticipate the insurer’s collection of invoices from a law firm in the event that a defense was necessary,” wrote Judge Brian Blanchard.

    The appeals court rejected the county’s argument that the invoices were “collected under” the agreement that existed between the law firm and the county’s insurer, not under the insurance contract between the county’s insurer and the county.

    Attorney-client privilege

    After in camera inspection, the circuit court had ruled that the attorney-client privilege applied because the billing records would reveal the substance of lawyer-client communications.

    The appeals court explained that billing records are communications from the attorney to the client and subject to the attorney-client privilege, but revealing the records does not violate the attorney-client privilege unless the records “would directly or indirectly reveal the substance of the client’s confidential communications to the lawyer.”[1]

    “[W]e conclude based on our review of the unredacted invoices that the invoices, on their face, to not reveal the substance of privileged communications,” Judge Blanchard wrote.

    The appeals court noted that the county did not provide sufficient evidence to justify the redactions as protecting privileged information, but did not conclude that law firm invoices could never be protected by the attorney-client privilege under 19.36(3).

    Because the county did not adequately address, in circuit court, the alternative argument that the redacted information was protected as “attorney work product” – “material, information, mental impressions and strategies an attorney compiles in preparation for litigation”[2]  – the appeals court mentioned but did not resolve that issue.

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    [1] Citing Seifert v. School Dist. of Sheboygan Falls, 2007 WI App 2007, ¶28, 305 Wis. 2d 582, 740 N.W.2d 177.

    [2] Citing Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶40, 251 Wis.2d 68, 640 N.W.2d 788.