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The Attorney-client Privilege And Attorney-work Product Doctrine

In order to enforce the right of the attorney-client privilege, the organization must show that: 

  • the claimed holder of the privilege is or is attempting to become a client; 
  • the person to whom the contact was made is a member of the bar of the court or a subordinate; 
  • the communication relates to the fact that the attorney was told by his client, without the involvement of strangers. 

The doctrine of the attorney-work product doctrine forbids the disclosure of “the mental impressions of the attorney of a party or its conclusions, opinions, memorandums, notes or summaries, legal research or legal theories.” The “work product doctrine” is closely similar to the right of attorney-client privilege, but is wider because it covers any information prepared by the attorney, usually in preparation of litigation, regardless of whether it is confidential.

In Levy v. Senate of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013), the Supreme Court of Pennsylvania extended the right of attorney-client to details of legal services used in legal invoices. In deciding if the right was applicable to a specific invoice entry, the Court explained:

The important question is whether the substance of the writing will contribute to the disclosure of information that is otherwise shielded by the right of an attorney-client. For example, legal service details that address the motivation of the client to seek representation, legal advice, strategy, or other confidential communications are undeniably covered under the right of the attorney client. An entry that usually states that counsel made a telephone call to the client for a particular period of time, on the other hand, is not information covered by the right of the attorney-client, but is subject to disclosure under the specific provisions of the RTKL instead.

With regard to the application of the attorney-work substance doctrine to legal invoice entries, the Commonwealth Court has added:

While general details such as writing a memo, making a telephone call, conducting analysis, following a track, represent work done, they do not disclose the ‘mental thoughts, ideas, notes, tactics, research and the like’ of an attorney without further information. Disclosure of the general activities performed in conjunction with the fee paid indicates nothing about litigation strategy. The charges for legal services rendered are easily clarified by the general essence of the service performed and justified. Where, as here, taxpayers are entitled to know the general essence of the services given for the fees paid, they are entitled to base the bill on legal services.

In this context, in Campbell v. Upper Moreland Township School District, AP 2018-21866, the OOR recently released a determination on censored legal invoices (Feb. 19, 2018). The OOR made the following observations on what can and can not be redacted from legal invoice entries after performing a camera analysis of requested legal invoices:

The right of the attorney-client is protected by entries containing details of legal services that disclose legal policy, including the identification of particular matters assigned to legal counsel for examination, or that would expose the specific content of confidential correspondence between the attorney and the client.

Entries that include the District’s solicitors’ findings, opinions, notes or summaries, legal analysis or legal theories as they relate to legal services provided to the District are covered by the doctrine of the attorney-work product.

Entries relating to regular obligations relevant to the provision of legal services, such as making and receiving telephone calls, holding meetings, receiving and sending correspondence, are not privileged.

Dates and file numbers are not privileged because they do not reveal any legal strategy or the precise content of any confidential correspondence and do not disclose the mental impressions or assumptions, thoughts, memoranda, notes or summaries, legal analysis or legal theories of that attorney to the degree that these entries record work done by an attorney.

The decision of Campbell gives insight into how censored legal invoices are assessed by the OOR. Accordingly, upon receipt of an RTKL request for legal invoices, an open record officer may consult with their attorney to decide what can and cannot be redacted.