Like it or not, attorneys who work on contract for government agencies — and, it turns out, even those whose payment flows through government agencies’ insurance companies — must let the public know what they’re charging for.
That’s the bottom line of a new ruling from the Wisconsin Supreme Court that comes just a few months after courts in California and Ohio reached the same conclusion. With the growing judicial consensus, it’s getting increasingly hard for anyone to argue that law-firm bills are exempt from the normal rules of access to public documents.
In Tuesday’s ruling, the Wisconsin justices decided on a 4-3 vote that a newspaper in Juneau County, the Star-Times, is entitled under the Wisconsin Public Records Law to see the invoices submitted by a law firm that is defending the county in a lawsuit against the sheriff’s department. The decision is being called “a huge win for the open records law.”
The amount that government agencies spend defending against lawsuits is itself a newsworthy piece of information, and law-firm invoices sometimes disclose a good bit more, such as which witnesses are being interviewed or where attorneys are traveling to gather evidence.
That’s just what Juneau County is worried about. The county argued that legal bills are exempt from disclosure both because they’re covered by attorney-client privilege, since they might give away confidential legal strategy, and also because they’re maintained by the county’s insurance company and not the county itself.
As is true of many government agencies, Juneau County pays a liability insurance carrier to handle claims by those who say they were injured by the county’s negligence. If the claim is disputed in court, the insurance company hires legal counsel, so the contract for legal services is actually between the insurer and the lawyers, not the government agency.
But the court’s majority did not find that distinction to be meaningful. The justices looked beyond the structure of the contract, and ruled that the law firm was — for all practical purposes — a country contractor.
The County in the present case has a direct contractual relationship with the law firm pursuant to the liability insurance policy. The County and the law firm have an attorney-client relationship formed pursuant to the liability insurance policy.
The majority opinion, by Chief Justice Shirley F. Abrahamson, reinforced an essential pro-disclosure legal principle: “[A] public body may not avoid the public access mandated by the Public Records Law by delegating both record creation and custody to an agent.”
(The court did not decide the lurking issue of how much, if any, of law-firm invoices can properly be withheld on the grounds of attorney-client privilege, because the privilege argument was not raised in the appeal.)
The principle that a government agency must produce records even if they are physically kept by some outside third party is important for many contexts beyond legal bills.
For instance, public agencies often enter into contracts with corporate vendors to carry out document-heavy tasks such as processing claims for Medicaid payments from doctors, hospitals and nursing homes. In a growing number of states — Wisconsin now included — the fact that the work is actually being done by a private company off the government’s premises doesn’t change the “public” nature of the documents.
Document-seeking journalists should be prepared to challenge the argument that records are not “public” if they are created or held by private companies. If those companies are being paid public money to carry out a public responsibility, then there is every chance that the public will be entitled to read up on where that money is going.