Are Lawyers’ Bills Privileged?

The attorney-client privilege's applicability to a lawyer's bill can come up in many contexts. One of them is where the contract in litigation has an attorneys’ fee clause.  In order to collect if you’ve prevailed, you need to be able to demonstrate what your counsel charge for the services. 

The issue is, what is stated in those bills?  Are there comments about the case, witnesses, views on opposing counsel’s positions and information from discussions that were between the attorney and the client or client representative?  If so, be careful about disclosure.  

In California, fee statements from attorneys are protected, but might need to be disclosed to collect under the fee clause in the contract.  This may require redaction of the bills before disclosure and then answering some tough questions about the redaction. 

In other states, the question remains unanswered.  Many states reject applying the privilege to a lawyer's bills.   Generally, billing statements that provide only general descriptions of the nature of the services performed and do not reveal a subject of confidential communications with any specificity are not privileged.  But there are many instances where bills do contain confidential information, because it is a way for counsel to remind clients what the various conversations and letters were about. 

So be careful when submitting bills for support in your claim for attorneys’ fees, or you may impliedly waive privilege protection for the communication contained in them.