Does the Attorney-Client Privilege Protect a Lawyer’s Bills?

January 28, 2009

In many situations, clients might be compelled to or even want to produce a lawyer’s bills — because the adversary claims that the bills contain pertinent information, because the client seeks recovery of attorneys fees from an adversary, etc. Although a lawyer’s bills clearly constitute a confidential lawyer-to-client communication, do bills automatically deserve privilege protection?

Courts unanimously reject any per se application of the attorney-client privilege to a lawyer’s bills. In United States v. Wittig, No. 03-40142-01/02-JAR, 2008 U.S. Dist. LEXIS 103821 (D. Kan. Dec. 15, 2008), the court repeated this view. The court instead required that the client seeking to withhold from production bills sent by its law firm Cahill Gordon demonstrate the privilege’s applicability to specific portions of the bills that disclose or reflect privileged communications. The court found that the client had not provided enough information to carry its burden of proof, and therefore ordered production of Cahill Gordon’s bills.

The inapplicability of privilege protection for most lawyers’ bills highlights the importance of a communication’s substance in assessing privilege protection — the privilege does not apply to all communications between a lawyer and a client.