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Supreme Court to weigh disclosure of lawyers’ bills

The Supreme Court of Virginia has agreed to take up whether a public body can keep the substance of its legal bills under wraps.

A dentist who settled his court battle with the city of Virginia Beach wants to know what the city’s lawyers did to justify the $300,000 they billed to the city. The city provided the billing records but redacted almost every description of the legal work.

Virginia Beach Circuit Judge H. Thomas Padrick Jr. refused to make the city provide additional details of the billing entries. To do so, he said, “would indeed reveal the City’s motives for seeking representation, litigation strategy, and the specific nature of many services provided, including specific topics of law or issues researched, and confidential communications.”

Lawyers for dentist Allan L. Bergano say Padrick’s ruling is contrary to that of another Virginia Beach judge in a highway condemnation case. Both sides agreed the Virginia Supreme Court has never addressed whether attorney-client privilege and the work product doctrine protect lawyer bills from public disclosure when the lawyer works for a public body.

“Virginia’s benches, bar and citizens deserve published guidance on this issue,” wrote L. Steven Emmert of Virginia Beach on behalf of Bergano. The dentist is also represented by Joseph T. Waldo and Brian G. Kunze of Norfolk.

Even if the privilege and work-product protections apply, the city overdid it on redaction, Bergano contended. The protections should not extend to matters that occur publicly, like trials and hearings, or matters involving opposing counsel, such as depositions, the dentist argued.

Lawyers for Virginia Beach say Bergano’s request for records came in the midst of litigation, and to permit disclosure of the detailed time entries “risks opening the City’s files for inspection by an opposing party in a pending federal lawsuit and is contrary to the stated purpose of the work product doctrine,” the city’s lawyers wrote.

The original dispute involved displacement of Bergano’s office after the city acquired the building where he rented. A federal judge found the city had mistreated Bergano. The city settled with the dentist for $175,000 in compensation, but the city also was forced to pay $190,000 in Bergano’s legal costs and $340,000 in its own expenses.

The city was represented in the Bergano federal litigation by lawyers with the firm of Kaufman and Canoles. The city is represented in the FOIA action and appeal by City Attorney Mark D. Stiles, Deputy City Attorney Christopher S. Boynton and Associate City Attorney Gerald L. Harris.