Are Lawyers’ Bills Privileged?

July 13, 2011

The attorney-client privilege’s applicability to a lawyer’s bill can come up in many contexts.

In Hampton Police Ass’n v. Town of Hampton, No. 2010-323, 2011 N.H. LEXIS 59, at *15 (N.H. Apr. 28, 2011), the New Hampshire Supreme Court noted that the privilege’s applicability to a lawyer’s bills was “an issue of first impression in New Hampshire.” The court explained that “courts in many jurisdictions have rejected” a per se rule applying the privilege to a lawyer’s bills. Id. Instead, “[c]ourts generally agree that 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.” Id. at *15-16.

Although this general approach makes sense, corporations should remember that they might impliedly waive privilege protection for their lawyers’ bills by seeking attorney’s fees from a third party under a fee-shift statute or contract.