Broyles v. TC - Ltr to Olympian/Brenner (1013490.DOC;1)

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                                                   December 9, 2011



Ms. Keri L. Brenner
Reporter
The Olympian
P.O. Box 407
Olympia, WA 98507

        Re:           Broyles v. Thurston County - Response to AGO letter

Dear Ms. Brenner:

       This letter is being sent to you in response to a prior letter sent to you from Greg
Overstreet at the Attorney General‟s Office, dated December 15, 2006, and copied to our office,
and as a follow up to our letter to you dated December 18, 2006. While we will not dispute
much of Mr. Overstreet‟s analysis here, we do not wholly agree with his analysis, and will
supplement the analysis provided by Mr. Overstreet below.
        However, prior to providing our analysis, Thurston County will offer to provide certain
general information in regard to the attorney billing invoices that it has in its possession, in hopes
that the offered information is sufficient to The Olympian in regard to its public records request.
If so, we can hopefully resolve the present matter. The information that the County is willing to
provide includes the following: (1) the dates work was done, and (2) the total number of hours
worked, and (3) the amount of fees paid.1
        I believe the major point of disagreement between Mr. Overstreet‟s analysis and that of
the County relates to the first basis upon which the records request was denied. Mr. Overstreet
states: “the essence of the County‟s first ground for withholding the records (work product) is
that the „mental impressions‟ of an attorney should not be provided to the other side because this
would be unfair.” See Overstreet Letter at 2. This is an inaccurate representation of the
County‟s first basis for denial of the request.
       In its initial letter, the County clearly stated that that the first basis for denial of the
request is that the documents are exempt under RCW 42.56.290 [formerly RCW
42.17.310(1)(j)], which is a statutory exemption from the provisions of RCW 42.56.070(1), the
Public Records Act. As previously noted, RCW 42.56.290 states: “Records that are relevant to
a controversy to which an agency is a party but which records would not be available to
another party under the rules of pretrial discovery for causes pending in the superior courts
are exempt from disclosure under this chapter.” Thus, there are two requirements that must be
met for a document to be exempt under the statute, the record: (1) must be relevant to a
controversy, and (2) must not be something generally discoverable under Civil Rule 26.

    1
       As previously indicated to the Olympian, the County has a $250,000.00 deductible, and they do not have in
their possession any bills beyond when this amount of funds was expended in the first case.

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                             Ms. Keri L. Brenner
                             December 9, 2011
                             Page 2

       The term “controversy” in RCW 42.56.290 /RCW 42.17.310(1)(j) is inclusive of past and
present litigation as well as “reasonably anticipated” litigation. See Dawson v. Daly, 120 Wn.2d
782, 791, 845 P.2d 995 (1993). “[T]he pretrial discovery rules referred to in RCW
42.17.310(1)(j) are those set forth in the civil rules for superior court, CR 26.” Limstrom v.
Ladenburg, 136 Wn.2d 595, 609, 963 P.2d 869 (1998).
        Attorney bills are not available to another party under CR 26, and while a jury has
returned a verdict in the above-referenced lawsuit, the controversy is ongoing, with motions
continuing in the trial court. The records that you have requested are relevant to that controversy,
especially since part of the controversy will include a dispute regarding attorney fees. An appeal
is also imminent, after which the case could be returned to the superior court again. Therefore,
the records that you have requested are exempt from public disclosure.
        Mr. Overstreet does not address RCW 42.56.290‟s two-prong test for exemption under
the Public Records Act anywhere in his analysis. While work product is one basis for exemption
under RCW 42.56.290, and courts have addressed this basis, the language of the statutory
exemption is not limited to “work product.” The express language of the statute requires only
two things, and the Legislature‟s intent to exempt such documents should not be frustrated by
narrowing the meaning of the statute to being synonymous with the common law work product
privilege. When a statute is clear and unambiguous, it should not be construed. As the
Washington Supreme Court held in Schrom v. Board, 153 Wn.2d 19, 25, 100 P.3d 814 (2004):
       Our primary goal when interpreting a statute is to ascertain and give effect to the
       legislature‟s intent. Construing the statute as a whole and giving effect to every
       provision, we derive this intent from the text of the statute alone where its
       language is unambiguous.
Schrom, 153 Wn.2d at 25.

       While the first basis alone shields the requested documents from production, the County
provided additional basis upon which to deny the document request. The second basis for the
County‟s denial of the requested documents is that such documents are exempted from the Public
records Act under RCW 42.56.070(1) [formerly RCW 42.17.260(1)], which exempts from
disclosure documents that fall within the specific exemptions of other statutes. RCW
5.60.060(2)(a) is another statute that codifies the attorney-client privilege. The documents that
you have requested are attorney work product that is protected by the attorney-client privilege of
RCW 5.60.060(2)(a), therefore they are also exempt from production under RCW 42.56.070(1).
       The policy behind the attorney-client privilege is “so well recognized and so essential to
an orderly working of our system of legal procedure that a burden rests on the one who would
invade that privacy to establish adequate reasons to justify production through a subpoena or
court order.” Limstrom v. Ladenburg, 110 Wn. App. 133, 142, 39 P.3d 351 (quoting Hickman v.
Taylor, 329 U.S. 495, 510-12, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (appeal after remand).
       Washington courts interpret RCW 5.60.060(2) as providing two-way protection of
       all communications and advice between attorney and client, including
       communications from the attorney to the client. Id. (citing Kammerer v. W. Gear
       Corp., 96 Wn.2d 416, 421, 635 P.2d 708 (1981)). Moreover, we tend to use the



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                             Ms. Keri L. Brenner
                             December 9, 2011
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       inclusive term “privileged information” to refer to information protected under
       both the attorney-client privilege and the work product doctrine.
Soter v. Cowles Publ'g Co., 131 Wn. App. 882, 903, 130 P.3d 840 (2006) (citing Hangartner,
151 Wn.2d at 452).

        “[D]ocuments covered by the privilege are protected regardless of whether they are
„relevant to a controversy.‟” Id. at 903 (citing Hangartner, 151 Wn.2d at 452). “The privilege
applies to any information generated by a request for legal advice.” Id. (citing Dietz v. Doe, 131
Wn.2d 835, 846, 935 P.2d 611 (1997)).

        Mr. Overstreet says that the attorney fee bills must be partly produced because the bills
contain unprotected information, as well as privileged information, such as: (1) the dates work
was done, and (2) the total number of hours worked, and (3) the amount of fees paid. See
Overstreet Letter at 2. This is the information that the County is willing to give you, as discussed
in the beginning of this letter. Mr. Overstreet also makes four more statements on attorney-client
privilege exemptions:

       [1] While I know of no Washington law on the topic, [2] cases from other states
       have held that attorney invoices (date amount of time, etc.) are not covered by the
       attorney-client privilege (but portions describing mental impressions and actual
       communications of legal advice can be redacted. See Diversified Group, Inc. v.
       Daugerdas, 304 F. Supp. 2d 507 (S.D.N.Y. 2003). [3] Public records cases from
       other states hold that attorney invoices are subject to disclosure (with mental
       impressions and confidential attorney-client information redacted). See e.g.,
       Maxwell v. Freedom of Info. Comm'n, 260 Conn. 143, 794 A.2d 535 (2002);
       Smith & Williams, P.A. v. West Coast Regional Water Supply Auth., 640 So. 2d
       216 (Fla. App. 1994); New Haven v. Freedom of Information Com., 205 Conn.
       767, 535 A.2d 1297 (1988). [4] Finally, I note that attorney invoices are routinely
       provided by other Washington governmental bodies in response to public records
       requests (but with some redaction‟s.
Overstreet Letter at 2-3 (emphasis added).

        As an initial matter, Mr. Overstreet indicates that there is no Washington law directly on
point. Thus, the authority he cites it is not binding in Washington, and the opinions of foreign
courts frequently rely on foreign statutes or inapplicable foreign common law. While cases from
foreign jurisdictions may be persuasive in some instances, they are just as often not. Next, Mr.
Overstreet indicates that some courts have held that attorney invoices are not covered by the
attorney-client privilege, although portions of the invoices describing mental impressions and
actual communications of legal advice can be redacted. What Mr. Overstreet did not indicate is
that other courts have held the opposite, that attorney bills are protected by the attorney-client
privilege.

       For example, in the Ninth Circuit, the court found that requests for detailed billing
statements to be an unjustified intrusion into the attorney-client privilege:




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                             Ms. Keri L. Brenner
                             December 9, 2011
                             Page 4

       In order to comply fully with the specific requests contained in the subpoena,
       Horn would be required to produce letters of consultation and retainer agreements
       describing the intended scope of the attorney-client relationship, billing records
       describing the services performed for his clients and the time spent on those
       services, and any other attorney-client correspondence relating to the performance
       of legal services and the rates therefore. Such documents may reveal the client‟s
       motivation for seeking legal representation, the nature of the services provided or
       contemplated, strategies to be employed in the event of litigation, and other
       confidential information exchanged during the course of the representation.
       Accordingly, we have held, in clear and unambiguous language, that a demand for
       such documents constitutes an unjustified intrusion into the attorney-client
       relationship.
In re Horn, 976 F.2d 1314, 1318 (9th Cir. 1992) (citation and quotation marks omitted).

         In Hewes v. Langston, 853 So. 2d 1237 (Miss. 2003), the Mississippi Supreme Court,
quoting the Ninth Circuit, held: “correspondence, bills, ledgers, statements, and time records
which also reveal the motive of the client in seeking representation, litigation strategy, or the
specific nature of the services provided, such as researching particular areas of law, fall within
the privilege.” Id. at 1248 (quoting Clarke v. American Commerce Nat'l Bank, 974 F.2d 127 (9th
Cir. 1992)). The Hewes court held: “We conclude that the billing statements and DayTimer
entries are the type of detailed statements that are protected by the work product doctrine, and
the trial court erred in ordering them produced.” Id. at 1249.
       In Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999), the court held that “the
legal bills revealed the identity of the federal statutes researched. Since the records would
divulge confidential information regarding legal advice, they constitute privileged
communications and, as such, should not be disclosed.” While this case did involve a situation in
which the requesting entity sought un-redacted attorney bills, its general holding is applicable.
       In Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128-
1129, 16 Fla. L. Weekly D 2250 (Fla. 4th DCA 1991), the court held:
       … where the billing statements may include detailed descriptions of the nature of
       the services rendered and could therefore reveal the mental impressions and
       opinions of the attorneys to opposing counsel, the billing statements may be
       protected from discovery by both the attorney client privilege and the work
       product doctrine. …
       Accordingly, the trial court‟s May 8, 1991, order is quashed insofar as it compels
       production of copies of bills for services rendered and time records of Tobin &
       Tobin, Inc., for the LHO Trust, Robert Ohl, Brian Ohl, and Old Holdings, Inc.
Old Holdings, Ltd., 584 So. 2d at 1128, 1128-1129.




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                             Ms. Keri L. Brenner
                             December 9, 2011
                             Page 5

       Therefore, Washington has no specific binding authority regarding attorney fee invoices,
and the foreign authority on this issue is conflicting. Even if we look at the authority cited by
Mr. Overstreet, the cases themselves are not very persuasive.
        Mr. Overstreet cited to a federal case, Diversified Group, Inc. v. Daugerdas, for the
proposition that “cases from other states have held that attorney invoices (date amount of time,
etc.) are not covered by the attorney-client privilege (but portions describing mental impressions
and actual communications of legal advice can be redacted.” Overstreet letter at 2. What
Daugerdas actually states is:
       Under federal common law, attorney fee arrangements, including the general
       purpose of the work performed, are not generally protected from disclosure by the
       attorney-client privilege. However, correspondence, bills, ledgers, statements, and
       time records which also reveal the motive of the client in seeking representation,
       litigation strategy, or the specific nature of the services provided, ..., fall within
       the privilege. …
       The invoices merely identify the titles of some of the transactions. They provide
       no additional details regarding the nature of the legal services provided.
Daugerdas, 304 F. Supp. 2d at 514.

        Thus, Diversified Group, Inc. v. Daugerdas actually states that “fee arrangements” are
not privileged; however, “bills” are a type of document specifically enumerated in the case as
falling within the privilege.

        Mr. Overstreet then cites to three state law cases, two from Connecticut and one from
Florida, for the proposition that “[p]ublic records cases from other states hold that attorney
invoices are subject to disclosure (with mental impressions and confidential attorney-client
information redacted).” Maxwell v. Freedom of Info. Comm'n, 260 Conn. 143, 794 A.2d 535
(2002); Smith & Williams, P.A. v. West Coast Regional Water Supply Auth., 640 So. 2d 216 (Fla.
App. 1994); New Haven v. Freedom of Information Com., 205 Conn. 767, 535 A.2d 1297
(1988). The first two cases do not appear to have been cited by other published cases, and the
third case has only been cited outside of Connecticut in two Vermont cases.

       In regard to Smith & Williams, P.A. v. West Coast Regional Water Supply Auth., 640 So.
2d 216 (Fla. App. 1994), the case is very brief, the privilege claimed by the attorneys in that case
was “work product,” not attorney-client privilege (so it is inapplicable to the instant analysis),
and the case deals mostly with whether an attorney fee should be awarded, not whether, and/or to
what extent attorney fee invoices should be produced. There is practically no analysis on the
relevant issue and it is therefore not very persuasive.

       In regard to New Haven v. Freedom of Information Com., 205 Conn. 767, 535 A.2d 1297
(1988), the information requested was very narrow:

       In February, 1986, Stone sent a letter to the public information/public advocacy
       office of the city and town of New Haven, and in accordance with General
       Statutes § 1-19 (a) requested the following: “As the result of constructing the East


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                             Ms. Keri L. Brenner
                             December 9, 2011
                             Page 6

       Shore sewage treatment plant, the City of New Haven has been, and continues to
       be, involved in legal proceedings relating to the construction of that facility. I
       hereby request that you provide copies of all invoices from any attorney or law
       firm retained or consulted by the city in conjunction with any legal proceeding,
       whether an arbitration or litigation, connected with the construction of that
       facility. This request includes, but is not limited to, invoices from the law firm of
       Beveridge and Diamond.” The letter went on specifically to limit the
       information requested to only the name of the attorney or law firm
       submitting the invoice, and the total amount of the invoice. The city did not
       respond to Stone‟s letter, whereupon she filed a letter of complaint with the
       commission pursuant to General Statutes § 1-21i (b).

New Haven, 205 Conn. at 769 (emphasis added).

        Here, The Olympian’s records request was not so limited, although it was noted that there
could be redactions. The County has already indicated that, if acceptable to The Olympian, it
will provide the total amount of the invoices in the possession of the County, and the name of the
firm is already known to The Olympian.

        In regard to Maxwell v. Freedom of Info. Comm'n, 260 Conn. 143, 794 A.2d 535 (2002),
again, it has not been cited by any other case and stands alone. The case itself does not
specifically deal much with the relevant issue. When Maxwell does address the relevant issue, it
holds that Connecticut‟s Statute § 52-146r, which prohibits disclosure of confidential
communications between government attorneys and public officials or employees of public
agencies, rests on the same ground as Connecticut‟s common law rule of attorney client
privilege, which is that to be privileged: (1) the attorney must be acting in a professional capacity
for the agency, (2) the communications must be made to the attorney by current employees or
officials of the agency, (3) the communications must relate to the legal advice sought by the
agency from the attorney, and (4) the communications must be made in confidence. Maxwell,
260 Conn. At 148-149.

       In contrast, Washington‟s statutory attorney-client privilege, RCW 5.60.060(2)(a),
provides: “An attorney or counselor shall not, without the consent of his or her client, be
examined as to any communication made by the client to him or her, or his or her advice given
thereon in the course of professional employment.” In In re Schafer, 149 Wn.2d 148, 162, 66
P.3d 1036 (2003), the Washington Supreme Court expounded upon the importance to society for
maintaining the sanctity of such client confidences:

       RPC 1.6 prohibits an attorney from disclosing client confidences and secrets. A
       “confidence” is defined by the RPC as “information protected by the attorney-
       client privilege under applicable law.” RPC terminology. A “secret” refers to
       “other information gained in the professional relationship that the client has
       requested be held inviolate or the disclosure of which would be embarrassing or
       would be likely to be detrimental to the client.” Id. …
       …



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                                Ms. Keri L. Brenner
                                December 9, 2011
                                Page 7

         It is a “fundamental principle in the client-lawyer relationship … that the lawyer
         maintain confidentiality of information relating to the representation.” ABA,
         Model Rules Of Prof‟l Condict R. 1.6 cmt. 4 (1991). Indeed, “lawyers are
         regarded as people who know how to keep secrets, as much as they are regarded
         as litigators … or drafters of contracts.” 1 Geoffrey C. Hazard, Jr. & W. William
         Hodes, The Law of Lawyering § 9.2 (3d ed. 2002). This perception is founded on
         more than 300 years of the practice of confidentiality.2
         But the privilege does not exist merely for the benefit of individuals. The
         attorney-client privilege has been sustained for centuries because of the
         fundamental benefits that accrue to society at large. The privilege “promote[s]
         broader public interests in the observance of law and the administration of
         justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L.
         Ed. 2d 584 (1981). The attorney-client privilege is pivotal in the orderly
         administration of the legal system, which is the cornerstone of a just society. The
         reasoning is tripartite: to maintain the adversarial system, parties must utilize
         lawyers to resolve disputes; lawyers must know all the relevant facts to advocate
         effectively; and clients will not confide in lawyers and provide them with the
         necessary information unless the client knows what he says will remain
         confidential. The confidential relationship that exists between an attorney and
         client facilitates the full development of facts necessary for proper representation
         and encourages clients to seek legal assistance early.
         The privilege also benefits society by helping to prevent crime and other
         misconduct by encouraging clients to disclose contemplated wrongdoing, giving
         attorneys a chance to discourage such acts. …
         The attorney-client privilege protects against unjust application of the law on a
         wide scale. In particular “[t]he attorney-client privilege benefits society by
         encouraging laymen to seek legal services and thereby learn their legal rights and
         responsibilities and obtain effective representation in litigation.” Development in
         the Law--Privileged Communications, 98 Harv. L. Rev. 1450, 1501 (1985). The
         privilege has long been considered instrumental in achieving social good because
         it induces clients to consult freely with lawyers and by doing so acquire expert
         legal advice and representation that helps them operate within the complex legal
         system. Id. at 1502. Because the privilege encourages clients to communicate
         fully with an attorney, lawyers are able to defend clients vigorously against
         charges and to assure them that the law will be applied justly. Without an
         effective attorney-client privilege, clients may be inhibited from revealing not


    2
      n4 The attorney-client privilege is thought to derive from the original concept of an attorney's implicit oath of
loyalty to his client and is the oldest of the common law privileges. 8 John Henry Wigmore, Evidence in Trials at
Common Law § 2290 (John T. McNaughton ed., 4th rev. ed. 1961).


                {1013490.DOC}
                             Ms. Keri L. Brenner
                             December 9, 2011
                             Page 8

       only adverse facts but also favorable information that the client might mistakenly
       believe is damaging.
       Erosion of this privilege through willful breaches of a client‟s trust by an attorney
       is undoubtedly harmful to society because these breaches weaken the public
       perception that people can seek assistance and rely on an attorney as an expert and
       counselor “free from the consequences or the apprehension of disclosure.” Hunt v.
       Blackburn, 128 U.S. 464, 470, 9 S. Ct. 125, 32 L. Ed. 488 (1888). Impairing the
       attorney-client privilege must be avoided because "[t]he attorney-client privilege
       may well be the pivotal element of the modern American lawyer's professional
       functions. It is considered indispensable to the lawyer's function as an advocate . .
       . [and] confidential counselor in law.” Geoffrey C. Hazard, Jr., An Historical
       Perspective on the Attorney-Client Privilege, 66 CAL. L. REV. 1061, 1061
       (1978).
Schafer, 149 Wn.2d at 162.

        Finally, Mr. Overstreet states: “attorney invoices are routinely provided by other
Washington governmental bodies in response to public records requests (but with some
redactions”). However, the attorney fee bills provided specifically state they are related to
“Public records Act Litigation” and apparently entail work done on issues pertaining to the
Public Records Act. This suggests that the invoices may have been provided in order for the
prevailing party in an action to receive a fee from the court, and not in response to the public
records requests themselves. Mr. Overstreet does not indicate whether the attorney fee invoices
provided relate to any pending litigation and, to the contrary, they do not appear to be related to
anything beyond the Public Records Act matter itself.

        If the attorney fee invoices attached to Mr. Overstreet‟s letter were not provided for
purposes of a prevailing party requesting an attorney fee, then the attached invoices provide
information that did not have to be disclosed (such as specific statutes researched, conversations
regarding specific issues relevant to the case, etc.). It is unclear why Preston Gates Ellis, LLP
waived the privilege it had, as it did here, but other firms are not required to followed suit and
willingly waive the confidences of its client merely because another firm did not.

        There are strong policy reasons for the attorney-client privilege to be honored here. If
The Olympian attempts to force this firm to breach the sanctity of the attorney-client privilege by
producing the County‟s attorney‟s invoices, the same arguments may later be used to force
attorneys for The Olympian to do the same. By preserving the sanctity of the attorney-privilege,
all of society benefits. As stated throughout this letter, the County is willing to provide general
information regarding the attorney fee invoices in its possession. Please advise us if this is an
acceptable resolution to your records request, and we will commence preparation of the
requested information.




             {1013490.DOC}
                           Ms. Keri L. Brenner
                           December 9, 2011
                           Page 9

      If you have any further questions, please do not hesitate to contact me.

                                                 Very truly yours,



                                                 Michael A. Patterson

MAP/mr
cc:  Ms. Vickie Kilgore
     County Commissioners




           {1013490.DOC}
                           Ms. Keri L. Brenner
                           December 9, 2011
                           Page 10

bcc:   Tammy Devlin
       Susan Looker
       Don Krupp




           {1013490.DOC}

				
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