Juneau County Star-Times v. Juneau County

DAVID T. PROSSER, J.

¶ 86. {dissenting). The majority opinion permits Wisconsin's public records law to breach privileged communications, contrary to sound public policy and the text of the public records statute. The majority's assurance that the opinion "does not alter the rules governing confidentiality, attorney-client privilege, or lawyers' work product, or any other rules protecting against disclosure," majority op., ¶ 15, is unpersuasive given the opinion's analysis and its other declarations. Because I believe the opinion has serious negative ramifications for the practice of law, I respectfully dissent.

I

¶ 87. Juneau County (the County) contracted with Wisconsin County Mutual Insurance Corporation (County Mutual) to provide public entity liability insurance for the County. Under this insurance policy (or insurance contract), County Mutual committed itself to pay damages that the County became legally obligated to pay as the result of a covered occurrence. The policy also covered attorney fees and costs related to defending a claim. The public entity liability policy was similar to insurance policies acquired by a multitude of Wisconsin municipalities and likely parallel to the liability policies acquired by innumerable non-public entities such as businesses and nonprofits.

*157¶ 88. In 2008 Juneau County Sheriff Brent Ole-son suspended one of his deputies, Jeremy Haske, for alleged misconduct. This action led to litigation, including two lawsuits by Haske against the sheriff. The County called upon its insurer, County Mutual, to provide a defense. County Mutual assigned the Milwaukee law firm of Crivello Carlson, S.C. (Crivello Carlson) to provide representation.

¶ 89. In the midst of this litigation, the Juneau County Star-Times (Star-Times) made a public records request through the Juneau County Clerk. The Star-Times requested access to any legal bills for 2008, 2009, and 2010 submitted by Crivello Carlson to County Mutual for its representation of the County in the Haske matters.

¶ 90. The record shows that Attorney Michele M. Ford (Attorney Ford) of Crivello Carlson, after conferring with the County's corporation counsel, supplied the Star-Times with 27 pages of redacted legal invoices that it had submitted to County Mutual. These invoices were dated February 16, 2009; June 8, 2009; August 20, 2009; or September 22, 2009, respectively. The redacted invoices showed total hours in each reporting period; total attorney fees in each reporting period; and other disbursements in each reporting period. They revealed the days Attorneys Ford, John T. Juettner, and Linda J. Slawson worked on the cases but did not reveal the exact amount of time that an attorney put in on a given day. Most significantly, the invoices did not disclose what an attorney was doing on a given day.

¶ 91. Attorney Ford explained in a cover letter to the Star-Times that "The invoices have been redacted to exclude information that is privileged by statute and common law. Access to records may be denied where *158there is a specific statutory exemption to disclosure, Wis. Stat. § 19.36, or where there is a common law or public policy exception."

¶ 92. Attorney Ford cited Wis. Stat. § 905.03, the lawyer-client privilege statute. She also cited "the privileged status of attorney work product." "The presumption of access under [Wis. Stat.] § 19.35(l)(a) is defeated because the attorney work product qualifies under the 'otherwise provided by law' exception."

¶ 93. When the County declined to release additional information from the legal invoices, the Star-Times filed suit in Juneau County Circuit Court.

¶ 94. Adams County Circuit Judge Charles A. Pollex was sent to Juneau County to hear the case. He determined that while Juneau County was an "authority" under the public records law, "There is no evidence before the court that the information in question has been created by nor that it is being kept by Juneau County."

¶ 95. Because the unredacted invoices were not a Juneau County "record," the court next considered whether the legal invoices were a "contractor record" under Wis. Stat. § 19.36(3). The court concluded that:

The invoices for attorney's fees rendered are, as far as this summary judgment record is concerned, a private matter between the Crivello Carlson law firm and Wisconsin County Mutual Insurance Corp. and any connection between the invoices and Juneau County's contract with Wisconsin County Mutual Insurance Corp. is tenuous at best.

Thus, the court held that the invoices did not qualify under § 19.36(3).

¶ 96. In addition, the circuit court found that "the invoices contain detailed descriptions of the nature of *159the legal services rendered to Juneau County. Producing these billing records would, therefore[,] reveal the substance of lawyer-client communications and fall within the purview of the lawyer-client privilege."

¶ 97. The court of appeals reversed, rejecting the County's explanation of the redactions and the circuit court's determinations. It directed the circuit court "to order the County to make available to the Star-Times unredacted copies of the invoices." Juneau Cnty. Star-Times v. Juneau Cnty., 2011 WI App 150, ¶ 2, 337 Wis. 2d 710, 807 N.W.2d 655 (emphasis added). The majority now affirms this conclusion without directly discussing the lawyer-client privilege or lawyer work product.

¶ 98. In short, the majority determines that this case can be decided by its construction of Wis. Stat. § 19.36(3).

II

¶ 99. Wisconsin Stat. § 19.36(3) reads as follows:

Contractors' Records. Subject to sub. (12), each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35(l)(am).

¶ 100. The crucial words in this subsection are "any record produced or collected under a contract entered into by the authority."

¶ 101. The relationships in this case may be diagrammed using the three corners of a triangle. In one corner of the triangle is Juneau County (the insured). *160In another corner is County Mutual (the insurer). There is indisputably a contract between these two "corners" and any record "produced" or "collected" "under" this contract is a "contractor record" under the statute, even though it was not created or kept by the County.

¶ 102. There is another corner to the triangle representing Crivello Carlson. Crivello Carlson has a contract with County Mutual. This contract is different from the County's insurance contract. We do not know the provisions of this contract; that is, we do not know the precise relationship between County Mutual and Crivello Carlson in terms of which Crivello Carlson attorneys will be involved in representing the public entities that County Mutual insures, how much the firm will be compensated for its services, when it will be compensated for its services, what sort of briefings Crivello Carlson must provide to the insurer, and what kind of invoices the firm must submit. We also do not know when this contractual relationship began. What we do know is that the County was not a party to this second contract and that the County did not select and did not have a right to select Crivello Carlson as its law firm.1 *161Crivello Carlson, by its own admission, was "assigned" to represent Juneau County.2

¶ 103. Crivello Carlson's invoices to County Mutual would not have been sent to the County but for the Star-Times public records request. Thus, the invoices were not "produced" for the County or "collected" for the County. They were "produced" or "collected" under the County's insurance contract only indirectly, raising the question whether an indirect connection is all the statute requires.

¶ 104. County Mutual must have contracts with providers for equipment and services that are paid for in part by Juneau County's insurance premiums. Thus, if Crivello Carlson's invoices are "under" the County's insurance contract, other invoices sent to County Mutual involving some interaction with the County may be "under" the insurance contract as well. This is why the Wisconsin Counties Association expressed concern that

*162the court of appeals decision — which the majority affirms — "suggests that an authority's duty to provide access to contractors' records is almost limitless."

¶ 105. The majority opinion commences its analysis with the simple proposition that "(1) The liability insurance policy is the basis of a contractual relationship between the County and the insurance company[.]" Majority op., ¶ 11 (emphasis added). This proposition may be true, but it is also true that the liability insurance policy is a contract. A contract gives rise to a contractual relationship. The majority opinion adopts "the basis of' phraseology, however, so that it can treat other relationships in the triangle as functionally equivalent to the County's insurance contract.

¶ 106. The majority's statement that "(2) The liability insurance policy is the basis of a contractual relationship between the insurance company and the law firm[,]" id., ¶ 11 (emphasis added), is true only if the law firm's contractual relationship was initiated because of the County's liability insurance policy. This is not a fact of record.

¶ 107. The majority opinion also asserts that the attorney-client relationship between Crivello Carlson and Juneau County is a third "contractual" relationship. Id., ¶ 11. This may not be true. A lawyer-client relationship is a fiduciary relationship.3 It is often an agency relationship. But it is not necessarily a contractual relationship. The majority opinion's conclusory assertions to the contrary are overly sweeping, and they have not been supported with Wisconsin precedent.

*163¶ 108. Once established and sanctified, the "tripartite" relationship described in the majority opinion is subject to application in other contexts. For instance, suppose an "authority" enters into a collective bargaining agreement (e.g., contract) with a public employee union. If the union later hires counsel to represent one of the authority's employees, must the union disclose the legal invoices it receives from hired counsel? Are these invoices contractor records because they are indirectly "under" the collective bargaining contract?

¶ 109. It is not difficult to apply the principles of the majority opinion to other situations involving legal representation as well as other sensitive relationships loosely related to an authority's contract.

¶ 110. Thus, the pivotal question before the court is whether records related only indirectly to a contract entered into by an authority are records "under" that contract that must be disgorged by the authority pursuant to the public records law.

¶ 111. The amicus Wisconsin Department of Justice (the DOJ) urges the court to interpret "any record produced or collected under a contract" as a record "required or obligated by a contract." It contends that the "statutory language, legislative history, and public policy all support this result."

¶ 112. The DOJ further argues that the legislature knew how to draft broader language describing contractor records in Wis. Stat. § 19.36(3) than it eventually chose. The DOJ concludes that because the legislature chose not to use broad language in § 19.36(3), the contractor records provision does not include any record "used in connection with the performance of contractual services." The DOJ believes that *164the court of appeals decision wrongly adopts the "used in connection with" concept for the contractor records provision in § 19.36(3).

¶ 113. The DOJ points to legislative history in its analysis. The legislature created Wis. Stat. § 19.36(3) in ch. 335, Laws of 1981 (Chapter 335). Chapter 335 was based on amended 1979 Senate Bill 482 that failed to pass (SB 482). Drafting File, ch. 335, Laws of 1981, Legislative Reference Bureau, Madison, Wis. Senate Bill 482 did not include a contractor records provision like the current § 19.36(3). However, SB 482, as amended, added a defined term, "maintains," in regard to personal data maintained by an authority.4 This defined term used the broad concept of "used in connection with," similar to the broad interpretation of the contractor records provision adopted by the court of appeals in this case. Cf. Star-Times, 337 Wis. 2d 710, ¶¶ 17, 22-23.

¶ 114. Ultimately, Chapter 335 did not include the broadly defined term "maintains" as drafted for SB 482. In fact, the legislature rejected several attempts to amend Chapter 335 to include the broader "maintains" definition from SB 482. Thus, the DOJ concludes, the legislature knew how to describe contractor records in broad terms, chose not to use broad terms, and this court should not interpret the present contractor records provision in Wis. Stat. § 19.36(3) as broadly as the court of appeals did and as the majority opinion does now.

*165¶ 115. The majority's dismissal of the DOJ's argument is not compelling. I would adopt the DOJ's interpretation of the public records law, recognizing that the DOJ is entitled to great weight deference because of the experience of this agency charged with enforcing the law.

¶ 116. If the DOJ's interpretation were adopted, the legal invoices would not be contractor records under Wis. Stat. § 19.36(3).

Ill

¶ 117. Juneau County has not relied on Wis. Stat. § 905.03, the statute on lawyer-client privilege, as a basis for its nondisclosure, in arguing its case in this court. It did, however, assert the privilege in the circuit court and in the court of appeals.

¶ 118. The majority seizes upon the County's strategy in this court as justification for not discussing the lawyer-client privilege in its opinion. Nonetheless, in ordering the County to turn over unredacted legal invoices under the public records law, the majority appears to be sending a message that the confidentiality of legal invoices may be in jeopardy under the public records law. If this is correct, it would be very bad news for "authorities" involved in litigation because it would depart from established precedent by treating "authority" parties different from non-authority parties under Wis. Stat. § 905.03.5

*166¶ 119. Our precedent is that "attorney billing records are protected by the lawyer-client privilege." Lane v. Sharp Packaging Systems, Inc., 2002 WI 28, ¶ 3, 251 Wis. 2d 68, 640 N.W.2d 788. They are confidential if they reveal the nature of legal services provided or the substance of lawyer-client communications. Id.

¶ 120. In Lane, the court observed that "once the professional relationship is established, all communications, oral and written, between attorney and client are privileged from production excluding those exceptions outlined in the statute." Id., ¶ 21 (quoting State ex rel. Dudek v. Circuit Court for Milwaukee Cnty., 34 Wis. 2d 559, 580, 150 N.W.2d 387 (1967)). However, the court added that the privilege should be contained so that it does not extend beyond its core rationale of ensuring candor and full disclosure between lawyer and client. Lane, 251 Wis. 2d 68, ¶ 21.

¶ 121. Hence, legal invoices are not inherently beyond the reach of a public records request, especially when the request is focused on fee arrangements involving the expenditure of tax dollars. But when a request seeks to uncover details about "the nature of legal services provided," id., ¶ 37 (citing United States *167v. Horn, 976 F.2d 1314, 1316-17 (9th Cir. 1992), and Real v. Cont'l Group, Inc., 116 F.R.D. 211, 213-14 (N.D. Cal 1986)), or "the substance of lawyer-client communications," Lane, 251 Wis. 2d 68, ¶ 39, the request becomes highly sensitive and may require in camera review by a court, as happened here.6

¶ 122. In my view, the County, County Mutual, and Crivello Carlson all had the right to assert the lawyer-client privilege. County Mutual and Crivello Carlson had an obligation to do so.

¶ 123. The lawyer-client privilege may be claimed by the client (the County). Wis. Stat. § 905.03(3). In this case it was. The client's decision binds others who are bound up in a confidential relationship with the client.

¶ 124. County Mutual had and has a contractual and fiduciary relationship with the County and is a "representative of the lawyer" as defined in Wis. Stat. § 905.03(l)(c) and listed in Wis. Stat. § 905.03(2). If the latter categorization were not true, the insurer's ability to protect its insured client's confidential communications would become hollow. In support of this categorization, the insurer/"representative of the lawyer" monitors the lawyer's expenditures, pays the lawyer's bills, and plays a role in any settlement.

¶ 125. The stakes in this dispute are obvious. The Star-Times already has information on the names of the County's lawyers, the number of hours they worked, and the amount they were paid — not by the County with County tax dollars, but by the County's insurer. What the Star-Times wants are "detailed descriptions of *168the nature of the legal services rendered" and "the substance of [the] lawyer-client communications." See ¶ 96, supra.

¶ 126. Any court that determines that these matters of substance are not present in the subject invoices must be prepared to rule that the circuit court's findings were clearly erroneous.

¶ 127. Deciding this case without discussing the lawyer-client privilege in relation to the limiting language of the public records law (in Wis. Stat. §§ 19.31, 19.35(1), 19.36(1), and 19.85(l)(g)) casts a dark shadow over the lawyer-client privilege and other privileges in Chapter 905.

¶ 128. An appellate court should reduce uncertainty, not magnify it. The likely result of this case will be to force changes in billing practice. In the future, legal invoices related to an "authority" may be sanitized so that they provide insurers and public entity clients with no information except the hours worked and the amount owed as well as an invitation to discuss the details orally.

¶ 129. For the foregoing reasons, I respectfully dissent.

¶ 130. I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this opinion with the caveats expressed in Justice Ziegler's dissenting opinion.

The Legal Expense Coverage Endorsement to the insurance policy states: "We [County Mutual] have the right and duty to select counsel to handle any matter for which you have given notice of your intent to seek legal expense coverage under Coverage D." This particular provision covered legal expense coverage related to "collective bargaining disputes, disputes with regulatory agencies or disputes involving any operation of principles of eminent domain, condemnation proceedings or inverse condemnation."

The insurance policy provision relating to general legal defense and settlement reads as follows:

We have the right and duty to defend any suit against the insured seeking monetary damages on account of bodily injury, *161personal injury, property damage or errors and omissions or any combination thereof, but:
1. The amount we pay for damages is limited as described in Section IV - Limits of Insurance;
2. We may, at our discretion, investigate any occurrence and settle any claim or suit that may result even if the settlement amount is exclusively within the insured's deductible; and
3. Our right and duty to defend end when we have used up the Limit of Insurance in the payment of judgments or settlements under Coverages A, B, or C. This applies to both claims and suits pending at that time and those filed thereafter.
Defense costs are payable in addition to the policy limit after any applicable deductible has been exhausted.

See letter from Michele Ford to Juneau County Star-Times dated February 10, 2010.

See, e.g., Sands v. Menard, Inc., 2010 WI 96, ¶ 53, 328 Wis. 2d 647, 787 N.W.2d 384; Berner Cheese Corp. v. Krug, 2008 WI 95, ¶ 41, 312 Wis. 2d 251, 752 N.W.2d 800.

The engrossed version of 1979 Senate Bill 492 defined "maintains" to include data in "the legal custody of a person who performs or has performed services under contract to the authority agency and the data has been collected, stored, disseminated or used in connection with the performance of the services ... ."

Wisconsin Stat. § 905.03(2) and (3) provide in part:

(2) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: between the client or the client's representative and the client's *166lawyer or the lawyer's representative; or between the client's lawyer and the lawyer's representative; or by the client or the client's lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client.

(3) Who May Claim the Privilege. The privilege may be claimed by the client,. . . The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer's authority to do so is presumed in the absence of evidence to the contrary.

The court of appeals acknowledges that "many of the redacted portions are descriptions of legal services rendered." Juneau Cnty. Star-Times v. Juneau Cnty., 2011 WI App 150, ¶ 41, 337 Wis. 2d 710, 807 N.W.2d 655; see also id., ¶ 45.