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.
A typical example of an association waiving the attorney-client privilege is a situation where a board is getting pushback from its membership about a specific decision it made and obtains a written legal opinion that the decision was lawful and within the board’s authority to make. In those situations it is oftentimes easier to simply turn over the opinion letter to owners in order to prove the board acted properly, then to justify the actions using other means.
Don’t fall into this trap. Attorney opinions oftentimes contain recommendations, concerns, and identification of risks, all of which can be used against the boards by owners who may not understand the situation. As a result, the better option is to either have legal counsel draft an informational letter to owners explaining why the board acted properly, or have the attorney attend the next owner or board meeting to discuss owner concerns. Both of these options allow the board to address owner concerns 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 managers (and other association agents exposed to privileged communication) should not voluntarily disclose such privileged matters or consent to their disclosure. At a minimum, consult with the association’s legal counsel prior to making a decision concerning waiver of the privilege.
For more information on the attorney-client privilege, please contact one of our attorneys at 303.432.9999.