Contractors who accept payment from the government — to build stadiums, pave roads, operate cafeterias, or provide security guards — must accept a little public snooping into their business practices as part of the bargain. The rate that a contractor charges, for instance, might normally be a proprietary secret — except when it appears in a contract with a government agency. Then, it’s a matter of public record.
Attorneys are trained to understand these disclosure laws — but that doesn’t mean they enjoy complying with them.
A pair of recent court rulings, from California and Ohio, reaffirms the public’s right to know what government agencies are spending on legal services.
In Ohio, the state Supreme Court decided Nov. 21 that the state open-records act requires government officials to disclose invoices for legal services containing “the general title of the matter being handled, the dates the services were performed, and the hours, rate and money charged for the services(.)”
The attorney-client privilege allows government officials to keep communications with their legal counsel confidential, even though government memos and letters normally are subject to public inspection. But in a 7-0 ruling in Anderson v. City of Vermilion, the Ohio Supreme Court said the attorney-client privilege covers only the portion of lawyers’ bills describing the substance of the advice provided. The rest — including the financial details — must be produced.
A California appeals court, similarly, decided Nov. 16 that attorney bills submitted to a county for payment must be disclosed as public records.
Los Angeles County claimed that attorneys’ invoices were exempt from disclosure under an exception in the California Public Records Act that covers “records pertaining to pending litigation.” But a three-judge panel of California’s Second District Court of Appeals decided otherwise.
In County of Los Angeles v. Superior Court of Los Angeles County, the appeals court decided that the exemption for “pending litigation” is a narrow one that shields only documents prepared for litigation (such as drafts of legal briefs) and not documents related to litigation (such as attorney bills). Even if the bills had some relevance to ongoing legal action, the court ruled, their “dominant” purpose was a non-litigation one — i.e., to get paid — so the documents could not be withheld as records potentially compromising the government’s strategy in court.
Taken together, these rulings solidify the public’s right to know how much government agencies — including public school districts and colleges — are paying for legal advice, and why.
Attorney fees can be a significant expense for educational institutions, especially colleges that patent a lot of their researchers’ discoveries. Houston’s Rice University, for instance, spent $1.75 million on two outside law firms during 2011, on top of the salaries of its in-house legal department, according to tax forms filed with the IRS. It’s worth asking what rates your institution is paying for legal advice, how those law firms are chosen, and whether there is overlap between the firms and the school board or board of trustees that might be a tipoff to preferential treatment.