Attorney-Client Privilege in CAs
A Legal Moment

The Attorney-Client Privilege and Community Associations

   It is important to understand the nature and extent of the attorney-client privilege within the context of a community association if for no other reason than to avoid unintentionally waiving it.

  A question that frequently arises in the context of condominium and homeowner associations ‒ particularly where litigation is contemplated between the association and one of its members ‒ is: whom does the association attorney represent?

   After all, since the attorney is paid out of Association funds, doesn’t he or she represent every member in the Association who contributes to those funds?  As a corollary, doesn’t this mean that each member should have equal access to the attorney and his or her communications to the Association?

   These are particularly thorny questions for community association boards that practice “transparency” in their operations ‒ typically an admirable quality.  However, “transparency” in a Board’s operations can become detrimental to an Association faced with the prospect of litigation, or with an entire dissident group of members.  It is even more problematic when the Board is confronted with the possibility of suing the developer or one of its own directors for a covenant violation.

The Attorney Represents the Board
   Although it might seem counter-intuitive, for all practical reasons the “association” attorney actually serves the Board of Directors (and its committees), and the attorney-client privilege is, or should be, confined to that relationship.  A Board’s interest in transparency notwithstanding, the Board is well within its rights to deny a member’s demand to be privy to the oral or written communications between the association attorney and the Board.

   Coextensive with this is the fact that the “association” attorney can represent the Board against an individual member in its collection efforts or in a full-blown lawsuit.

   Being able to maintain the attorney-client privilege is critical because, without it, the attorney and Board cannot communicate frankly about such important issues as the relative merits of the Board’s legal position on a given issue vis à vis the member’s position, or the legal strategy the Board has decided to take in the litigation.  You can imagine the difficulty a lawyer would have effectively representing the client if the opposing party had equal access to everything the lawyer and the Board communicated to each other.

 Litigation Committee
    For a Board faced with litigation, or the prospect of litigation, it is sometimes a good idea to form an ad hoc litigation committee ‒ and this is particularly so in the case of a matter involving a fellow Board member.  Such a committee enhances the prospect of maintaining attorney-client privileged matters.  It also enables more efficient communication and decision-making on the matter being litigated.

Executive Session
   Another way to preserve the attorney-client privilege is by going into “executive session” at a meeting of the Board.  To the extent Board meetings are typically open to members, going into “executive session” to discuss legal advice -- with or without the Association attorney -- allows that portion of the meeting to be kept secret.  Key to this is that the executive session must be called for the purpose of discussing a legal matter and not, for example, simply to hide a given matter from the membership.

Mum’s the Word
   One last thing to keep in mind is that, while the attorney must maintain the privilege unless expressly authorized to waive it, the attorney-client privilege can be waived if a particular communication is made to a person not “cloaked” with the privilege, or if there was never an intention to keep the communication a private one.  This arises, for example, when a board member ‒ who is having a drink with his or her next-door neighbor ‒ talks about what the attorney thinks will happen with the suit.  Or, as is more frequently the case, a board member copies or blind copies an attorney-client privileged email to someone not covered by the privilege.  The privilege can also be waived if the attorney’s advice is contained in the minutes of a board meeting and the secretary releases the minutes to the members.

   All of the foregoing notwithstanding, there are certainly appropriate times where the Board can disclose information it receives from its attorney to the membership, or even wants the attorney to attend a meeting of the membership to discuss a given issue and allow members to raise questions directly to the attorney.

   The point, in the final analysis, is that the Board has the right to keep such communications from general distribution to the membership, and the obligation to be careful and deliberate about the limited occasions on which it wants to waive the privilege.

Other Recent Articles
Philip Roth is a founding shareholder at Marshall, Roth & Gregory, PC. One of the firm's principal litigators, Philip's practice involves myriad issues involving community associations.

To receive more information on this topic or to suggest topics for future editions of "A Legal Moment," feel free to contact Philip by email ( or telephone (828.281.2100).

Or visit our firm's website.

Other articles which may be of interest to you may be found in our Newsletter archives.

You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.
Copyright © 2017 Marshall, Roth & Gregory, PC, All rights reserved.
Email Marketing Powered by MailChimp