Limits on the Attorney-Client Privilege: Discovering Fee Agreements

The attorney-client privilege doesn’t protect as much as many think it does.  Knowing where the line might be in a given fact pattern or legal scenario is a distinction that makes a difference.

This is issue arose in Bauman v. Saxe Mgmt., LLC.  The particular decision at issued concerned a potential class action and discovery seeking certain information that plaintiffs resisted as being privileged.[1]  The court first noted that certain information simply is not privileged at all.  “Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.[2]  Nor is does the privilege apply “when an attorney is merely communicating information, such as an order to appear in court….”[3]

Specific to this case, the defendants wanted the fee agreement between the class representatives and counsel.  It was discoverable in that context.  “The Ninth Circuit has held that proposed class representative fee agreements are ‘plainly relevant, at the class certification stage.’”[4]  The court also ordered that the various fee agreements between the law firms representing the class representatives were discoverable.

[1] No. 2:14-cv-1125, 2016 U.S. Dist. LEXIS 11523 (D. Nev. Jan. 27, 2016).

[2] Citing United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir. 1994); Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992).

[3] Citing United States v. Gray, 876 F.2d 1411 (9th Cir. 1989) (holding attorney client privilege did not preclude lawyer from testifying he advised client of the sentencing date in prosecution of client for failure to appear); McKay v. Commissioner, 886 F.2d 1237 (9th Cir. 1989) (holding testimony of taxpayer’s attorney that he gave the taxpayer a copy of deficiency notice from the IRS in ample time to timely file a petition did not violate the attorney-client privilege).

[4] Id., citing Rodriguez v. West Publ’g Corp., 563 F.3d 948, 959-60 (9th Cir. 2009).