Civil Litigation Legal Topics Litigation Strategy Practice of Law

Protecting the Confidentiality of Your Client’s Fee Agreement

You receive a written demand for documents in a case pending in a California state court. One of the documents sought is your client’s fee agreement. As a good lawyer, your first instinct is to protect the agreement’s confidentiality. You ask yourself: Can I object? and if I can, on what grounds? The answer is found in Bus & P C §6149.

Section 6149, a little-known statute enacted in 1986, provides:

A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of [Bus & P C] Section 6068 and of Section 952 of the Evidence Code.

Section 6149 accomplishes two important things: First, it makes the Evid C §952 attorney-client privilege applicable to a written fee agreement. Second, it obligates an attorney to preserve the confidentiality of a written fee agreement, even in a context in which the attorney-client privilege does not apply. See Bus & P C §6068(e).

A “confidential communication between client and lawyer” under Evid C §952 is protected from disclosure by the attorney-client privilege. Evid C §954. By directing that a written fee agreement constitutes such a communication, Bus & P C §6149 expressly extends the protection of the attorney-client privilege to written fee agreements.

This confidentiality is not absolute.  A client’s written fee agreement may lose its privileged status, for example, if it is “relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” Evid Code §958. The attorney-client privilege may also be waived. See Evid C §912(a). In fact, a client may waive the privilege by calling an attorney to testify about the contents of the written fee agreement or by expressly consenting to disclosure.

So, a good lawyer’s first instinct is correct: Absent your client’s consent to disclose the agreement, you must oppose a demand to produce it and refuse to produce it unless ordered to do so by a final court order. See Evid Code §914(b). Section 6149 requires no less.

For more on this issue, go to CEB’s California Civil Procedure Before Trial, chap 3 on Representation Agreements.  When it comes to drafting fee agreements, turn to our Fee Agreement Forms Manual.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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