A law firm’s bills for legal services are generally protected from disclosure under the attorney client privilege. However, the Ohio Supreme Court recently ruled that a city can be compelled to release portions of the invoices of a private law firm working for the city pursuant to a citizen’s public records request.
The Ohio public records statute, R.C. 149.43, establishes the types of records political subdivisions must make available to requesting individuals. The law exempts from disclosure certain privileged information. In State ex rel Anderson v. City of Vermillion (November 21, 2012), Slip Opinion, the Ohio Supreme Court addressed whether the bills of a municipality’s private law firm are exempt from disclosure under the public records statute on grounds of the attorney-client privilege. In Anderson, the former mayor made a public records request for the legal bills of the private law firms rendering services to the city. When the city refused to release the records on grounds of the attorney-client privilege, the former mayor filed a mandamus action in the Court of Appeals to compel release. The Court of Appeals ruled that the private law firm billing records were protected from disclosure on the grounds of the attorney-client privilege. However, the Supreme Court reversed, holding that while the narrative portions of the bills were protected from disclosure, the city needed to release redacted bills which would provide the former mayor with the general title of the matters being handled; the dates of services; the hours spent; the billing rate; and the total amount charged. Only the narrative portions of the bills were deemed to be exempt from disclosure.
It remains to be seen whether persons involved in litigation with political subdivisions will use the Anderson ruling to request discovery of the billing information of defense counsel for political subdivisions. Arguably, no billing records should be released when defense counsel is hired by the municipality’s insurer. Although Anderson protects the narrative portions of legal billings from disclosure, opposing litigants could learn information from the billing records which could shed light on the political subdivision’s legal strategy, such as the timing and extent of defense efforts. While the Court in Anderson wanted to ensure transparency so that citizens can monitor what is being spent by political subdivisions on outside legal services, it is unlikely that the Court wanted to put municipal defendants at a disadvantage not suffered by non-public litigants. Also, presumably a political subdivision does not need to release billing records if the bills are paid by an insurance carrier and the political subdivision does not receive copies of the bills in the normal course of business.
Should you have any questions regarding this decision or Ohio’s Public Records Statute, or any other question regarding governmental liability, do not hesitate to contact a member of our Governmental / Public Entity Practice Group.
