The attorney-client privilege is not typically at the forefront of peoples’ minds when communicating with counsel, but it really should be. An accidental waiver of the privilege can lead clients to compromising positions, expose them to liability, and place them at legal disadvantage with respect to the particular legal matter.
The attorney-client privilege is the oldest privilege pertaining to confidential communications going back hundreds of years; the purpose of this privilege is to encourage full and frank communication between attorneys and their clients, thereby allowing attorneys to be fully informed and provide the best legal representations they can.
Communications falling under this privilege include in-person conversations, phone calls, texts, emails, and letters, and cannot be disclosed by the attorney without consent of the client. In other words, only the client can decide whether or not to waive its attorney-client privilege. But be careful! Once the privilege is waived, the waiver cannot be retracted and the communication is no longer privileged. This means any owner or outside person will have access to the document or information.
One example of waiving the attorney-client privilege is a situation where the board requests a construction contract review from the association’s attorney. When the board receives the contract review, it simply forwards it on to the contractor.
A second example of a waiver of the attorney-client privilege, is a board that receives a legal opinion from association counsel and is being pressured by owners in the community to “prove” it complied with the opinion. Giving in to peer pressure, the board distributes copies of the legal opinion to its owners.
Don’t fall into these types of traps. Attorney communications (whether a contract review letter or an opinion) oftentimes contain recommendations, concerns, and identification of risks, all of which can be used against board members and the association by owners who may not understand the situation. If an opinion letter offers options and discusses risks associated with the options, the board will, no doubt, be criticized for choosing any such option.
As a result, the better option is to have legal counsel draft an informational letter to owners explaining why the board acted properly or preparing a non-privileged letter to the contractor setting forth its recommended revisions to the proposed agreement. Both options allow the board to address owner concerns and negotiate a contract without waiving the attorney-client privilege.
An association should carefully guard its attorney-client privilege as it can be waived inadvertently by disclosing its communication with legal counsel to a third person other than that necessary to render legal services. Therefore, as a general rule, board members (and other association agents exposed to privileged communication) should not voluntarily disclose such privileged matters or consent to their disclosure.
For more information on the attorney-client privilege, please contact one of our attorneys at 303.432.9999 or at [email protected].