Legal Memorandum: Attorney's Billing Records Privilege in WA

Issue: Are an attorney’s billing records privileged under Washington law?

           The issue whether information about payment of attorney fees constitutes a confidential, privileged communication is a mixed question of fact and law that is subject to de novo review in the appellate court.  Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). 

Under Washington law, an attorney is prohibited from revealing “any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.”  RCW 5.60.060(2)(a).  Although the privilege belongs to the client, the attorney properly asserts attorney-client privilege when the attorney is party to proceedings to which the client is not a party.  Olson v. Haas, 43 Wn.App. 484, 718 P.2d 1 (1986).  The attorney is presumed to have the authority to assert the privilege on the client’s behalf.  Id., 718 P.2d at 2.  When, as here, the client has stated positively that there was no waiver of the privilege, the court errs by requiring the attorney to reveal the information.  Id. at 2-3.  Indeed, it could not be more settled that an attorney properly asserts attorney-client privilege on behalf of his or her client when asked to divulge confidential communications; moreover, the question whether attorney-client privilege applies to protect a certain communication depends on the circumstances of the case.  Abslag v. Bock, 139 Wn. 198, 246 P.2d 300, 302-03 (1926).

Resolution of the question whether the information such as this is protected by the attorney-client privilege is governed […]