Most courts hold that a lawyer’s fee agreements and bills will not be protected by the attorney-client privilege, except to the extent that they reveal confidential information (such as a description of the work performed). This issue often arises when a successful litigant seeks to recover attorney’s fees under some law or contract provision.
Courts point to a number of doctrines in reaching this conclusion. Some note that the fee agreements and the bills do not reflect a client’s request for legal advice or the lawyer’s provision of legal advice. Other courts conclude that a party seeking attorney’s fees has put the basis for the fees or the amount of the fees “at issue”—thus waiving the privilege protection.
A recent decision carried this general doctrine a step further by finding that a party’s mere request for attorney’s fees in a complaint prevented the party from withholding the fee agreement or the bills. Tonti Properties v. Sherwin-Williams Co., No. 99-892 SECTION “E” (2), 2000 U.S. Dist. LEXIS 5748, at *4 (E.D. La. Apr. 26, 2000). Although the opinion is not crystal-clear, it appears that the court reached this decision based on the claim for fees, rather than a judicial finding that the party was entitled to a fee award.
The court also relied on the “at issue” doctrine to find that the party claiming entitlement to fees had waived the privilege.
Lawyers and litigants who routinely seek attorney’s fees in their complaints or defensive pleadings should monitor this issue to see if other courts begin to adopt such an approach.