Attorney-Client Privilege and the Lawyer's Invoice

This all could have been avoided if the Township's Open Records Officer ("ORO") had not been such a nervous nellie. 

Last Thursday, the Commonwealth Court issued three Right to Know Law related opinions.  This one was number 2. It involved a request to Milford Township for copies of their attorney's bills relating to a particular dispute. Everyone now agrees that the ORO could have waited for the solicitor to review and redact the bills, but instead the ORO released them.

The Commonwealth Court agreed the bills were privileged and could have been redacted. It then went on to rule that a privilege 'owned' by the Board was not waived simply because the ORO released the documents.  In fact, it found the ORO did not even have authority to make a "discretionary release" under the RTKL.

What is also interesting is that the court chose to examine the basis of the attorney-client privilege.  Doing so, it cited language from Upjohn Co. v. United States, 449 U.S. 383 (1981) which did not limit the privilege to only litigation related matters.  The matter here involved litigation, however, so we'll have to wait and see if the courts explicitly extends the privilege at some point.

The case is Bd of Sup. of Milford Township v. McGogney, 2387 CD 2009 and can be found here.


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