Regardless of the type, size, or location of a community, associations face legal issues that require them to seek legal advice. When an association reaches out to its attorney for advice, the information provided, and the actual communication providing such information, is considered attorney-client privileged.
The attorney-client privilege is a common law doctrine, going back centuries, that protects confidential communications between a client and the client’s attorney. This privilege applies to all attorney-client communications, whether made in person, on the phone, in a letter, or electronically. The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients. This privilege allows clients to feel comfortable communicating freely with their attorneys so they can receive the best legal representation and advice.
The association, as a corporate entity, cannot communicate with its attorney. Therefore, the association communicates through its board of directors. In such a relationship, the attorney represents only the corporate entity and not individual board members or the board of directors as a whole. The association attorney also does not represent individual owners within an association, which oftentimes does not sit well with owners because they want to have individual conversations with the association’s attorney when they are unhappy about something.
However, it is important to note that not all communications with the association’s attorney are privileged. In order to fall under the attorney-client privilege, the attorney must be providing legal advice concerning the association, board duties, maintenance obligations, etc.
The types of communications in such instances between any board member and the attorney include in-person conversations, phone calls, texts, emails, and letters, and such communications cannot be disclosed by the attorney without consent of the client. What does that mean for the association? It means only the association, as the client, can decide whether or not to waive its attorney-client privilege.
It is important to understand that associations can unintentionally waive the attorney-client privilege by, for example, providing copies of privileged communications to owners, vendors, or other third-parties. Once the privilege is waived, the waiver cannot be retracted, and the communication is no longer privileged.
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 may seem easier to simply turn over the opinion letter to owners in order to prove the board acted properly rather than to justify the actions using other means.
What associations must be aware of is that 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.
For more information on the attorney-client privilege, please contact one of our attorneys at 303.432.9999 or at [email protected].