An attorney’s itemized statement of time spent on a case can be a valuable piece of information for an opposing party and that party’s attorney. Knowing what work the other party’s attorney has done can provide insight into that party’s strategy and focus. That is why an attorney’s billing records are considered privileged material, not subject to discovery, under South Carolina Rule of Civil Procedure 26(b)(3). Such records fall under the attorney-client privilege (communications between an attorney and client are not subject to disclosure absent the client’s consent) and the work product doctrine (work an attorney does for a client is not subject to disclosure absent the client’s consent).
However, the law is clear that such privileges cannot be used as both a sword and a shield. See e.g., Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App. 1998). In Griffith, the Court of Appeals held that family court could deny wife alimony by making a negative inference based upon her invocation of the 5th amendment privilege when being questioned about adultery, which is both a crime and a bar to alimony under South Carolina law. The metaphor of invoking a privilege as both a sword and a shield is common in case law; the idea being that one cannot seek affirmative relief from the courts while invoking a privilege to shield from disclosure information that might undermine that claim for relief.
The balancing of this privilege is implicit in many family law cases. Unlike most areas of litigation, in family law the court is typically authorized to award the prevailing party attorney’s fees to be paid by the other party. However to award fees the prevailing party is required to provide an itemized statement of time spent. Johnson v. Johnson, 288 S.C. 270, 277-78, 341 S.E.2d 811 (Ct.App. 1986).
Because an itemized statement of the time an attorney has spent on the matter is a required element in the award of attorney’s fees, a party seeking attorneys fees implicitly waives the right to treat his or her attorney’s itemized statement of time as privileged materials. A client cannot affirmatively seek an award of fees while invoking privilege to shield disclosure of the attorney’s billing records. The issue is so ubiquitous in family court that few attorneys even perceive the strategic concerns involved in having a client seek fees from the opposing party.
However whether and when to seek fees from an opposing party is a concern attorneys should analyze, rather than reflexively seeking fees in every family court case. In situations in which one’s client is unlikely to be awarded fees, either because that client has vastly superior financial resources or is unlikely to prevail on contested issues, it may be counterproductive to seek fees–thereby leaving one’s billing records open to disclosure. In cases in which the opposing party has sought fees, the family court has uniformly required disclosure of billing records when that party has refused to provide me such records upon a claim of privilege. In contrast, I have never had a family court order disclosure of such records when the opposing party was not seeking fees.
In one case, the opposing party got a bit too clever regarding his billing statements. In a motion to compel, he successfully argued against disclosure of these records because he wasn’t seeking fees. When, on the eve of trial, he attempted to amend his complaint to seek attorneys fees, that request was denied based on his previous successful invocation of privilege. The family court noted he could not use his invocation of privilege as both a sword and a shield. It is one of the few times I have successfully stopped an opposing party from being granted leave to amend pleadings. See South Carolina Rule of Civil Procedure 15(a) (“leave shall be freely given [to amend a pleading] when justice so requires and does not prejudice any other party.”) (emphasis added).
In temporary hearing situations the seeking of fees amplifies these concerns. I consider it a sign of a thoughtful attorney when an opposing counsel decides to forgo a fee claim at a temporary hearing when that attorney’s client is either unlikely to prevail or in a vastly superior financial condition. Not only did that attorney save his or her client money by not having to bill for time preparing that fee affidavit, but that attorney is also able to shield information about the work he or she has done from me and my client.
Occasionally opposing party’s will seek temporary attorney’s fees without the attorney providing an itemized statement of time spent. Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) makes “the time necessarily devoted to the case” one of the factors the family court must consider in an award of attorney’s fees. Johnson notes that without an itemized statement of time spent the family court cannot properly analyze this factor and thus cannot substantiate an award of attorney’s fees. When opposing attorneys provide fee affidavits that lack an itemized statement of time spent, which sometimes happens at temporary hearings, I argue that Johnson precludes the family court from awarding that party temporary fees.
Not every family court case and client calls for a claim for attorney’s fees. Forgoing a claim for fees shields information about one’s work from the opposing side. Further an attorney should cite the Johnson case to prevent opposing attorneys from affirmatively seeking fees when they fail to disclose their itemized statement of time spent.