Disclosure of General Subject Matter of Work Done for, and Communications with, Client Does Not Effect Waiver of Attorney-Client Privilege — Detailed Disclosure May — Bills Protected Only If Content of Communications Disclosed

From Avgoustis v. Shinseki, 2011 U.S. App. LEXIS 6884 (Fed. Cir. April 6, 2011):

Appellant Stanley J. Avgoustis ("Avgoustis") applied for attorneys' fees as a prevailing party under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). The United States Court of Appeals for Veterans Claims ("Veterans Court") disallowed recovery for certain items involving client communications because the statements did not describe the purpose of the activity sufficiently to determine if the charges were reasonable. *** Avgoustis argued that requiring a more detailed description would violate his attorney-client privilege. The Veterans Court held that requiring general descriptions of the items would not violate the attorney-client privilege. We affirm. ***

So far as we have been able to determine, no court of appeals has held that disclosure of the general subject matter of a billing statement under fee-shifting statutes violates attorney-client privilege. The attorney-client privilege primarily protects "those attorney to client communications which would have a tendency to reveal the confidences of the client." Kenneth S. Broun, McCormick on Evidence § 89 (6th ed. 2006); see also Restatement (Third) of Law Governing Lawyers § 69(d) (2000) ("The attorney-client privilege protects only the content of the communication between privileged persons"). "Courts have consistently held that the general subject matters of clients' representations are not privileged." United States v. Legal Servs. for N.Y.C., 249 F.3d 1077, 1081 (D.C. Cir. 2001); see also In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) ("[T]he identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege."). Courts have also frequently required disclosures of the general subject matter of communications without any indication that they would implicate the attorney-client privilege or that they raise any conflict with the privilege. The Eighth Circuit upheld the district court's reduction of hours for "vague" entries, such as "met w[ith] client." H.J. Inc., 925 F.2d at 260. Also, the Sixth Circuit affirmed a district court's finding that entries merely noting that the attorney had numerous meetings with class representatives were inadequate. Reed v. Rhodes, 934 F. Supp. 1492, 1505, 1507 (N.D. Ohio 1996), aff'd 179 F.3d 453, 472 (6th Cir. 1999). These entries are indistinguishable from the items in this case stating "review client correspondence" and "draft client correspondence."

To the extent that the issue has been directly addressed (which is seldom), the courts have concluded that requiring such disclosures does not violate the attorney-client privilege absent unusual circumstances. In Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 129-30 (9th Cir. 1992), the Ninth Circuit explained that "the general purpose of the work performed [by attorneys is] usually not protected from disclosure by the attorney-client privilege," but statements and time records which might reveal "the motive of the client in seeking representation" or the content of a communication between the attorney and client would "fall within the privilege." The Fourth Circuit has similarly held that billing records are not privileged unless they "reveal something about the advice sought or given." Chaudhry v. Gallerizzo, 174 F.3d 394, 402-03 (4th Cir. 1999). In Chaudhry, the court found that requiring disclosure of notations about specific statutes researched by the attorney would violate the attorney-client privilege because it would reveal the content of advice sought and given. Id. None of the sample disclosures suggested by the Veterans Court here, such as "seeking the client's input as to the issues raised" or "seeking approval for actions that require the consent of the client," would come anywhere close to revealing the nature of the advice sought or given. At oral argument here we pressed Avgoustis' counsel to describe how general descriptions of the kind required by the Veterans Court, such as "communications updating the client as to the case's status" and "seeking the client's input as to the issues raised," would violate the attorney-client privilege. Counsel was unable to do so. It is noteworthy that in his reply to the VA's initial contention that the billing statements were inadequate, Avgoustis himself provided the purpose and general subject matter of 2.6 of the 5.2 disputed hours. For example, he explained that he billed 0.8 hours to "communicate with the client when initially retained," 0.8 hours to "communicate with [the] client regarding the significance of [the summary of issues for a mediated conference with the VA]," and one hour to "communicate with [the] client regarding the significance of [negotiations for the joint motion for remand and the attorneys' fee application]." See J.A. 39-40. He evidently did not believe these disclosures violated attorney-client privilege.

It is also noteworthy that in certain circumstances, federal courts have required parties under Federal Rule of Civil Procedure 26(b)(5)(A)(ii) to make similar disclosures about the general subject matter of potentially privileged documents in privilege logs. The rule requires a party withholding discovery documents under a claim of privilege to "describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A)(ii). The advisory committee notes further explain that "details concerning . . . general subject matter . . . may be appropriate." The Second Circuit, for example, found privilege logs were insufficiently detailed when they merely stated "Fax: Whistleblower article" or "Summary of Enclosures" and justified the privilege by characterizing the documents as "attorney-client communication[s]" without explanation. United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996). It would be strange if this requirement to disclose general subject matter in a privilege log invalidated the attorney-client privilege when the purpose of the rule is to determine whether the document is privileged "without revealing information itself privileged or protected." Fed. R. Civ. P. 26(b)(5)(A)(ii).

As recognized by the Ninth and Fourth Circuits, requiring detailed disclosure of subject matter could conceivably implicate the attorney-client privilege in unusual circumstances — e.g., if EAJA required an attorney to state that his client had consulted him as to whether the client had committed a crime. Contrary to the government's contention, if such circumstances existed, the privilege would be implicated even if the disclosures occur only after the end of the representation. Avgoustis claims that the Veterans Court might in fact require further disclosures that might impinge on the privilege. This is merely a hypothetical. The Veterans Court has not required such disclosures. The government explicitly stated at oral argument that it would be "satisfied with the level of detail provided" in the Veterans Court opinion. ***We are confident that the Veterans Court will be sensitive to protect the attorney-client privilege in future cases if a problem arises. We see no problem with the disclosures required here, nor should clients fear that the attorney-client privilege would be waived by these required disclosures.

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