Attorney/Client Privilege

My subdivision, consisting of 74 homes in North Carolina, is considering a possible merge with another subdivision. Homeowners have requested information about the merge process in order to make an informed decision. The Board of Directors recently requested information about this process from the HOA attorney. The Board used information received from the HOA attorney to create a neighborhood letter that was recently distributed.

Several neighbors wanted to review all the information received from the HOA attorney and provided to the Board to ensure that the attorney information was being communicated accurately. Why? There is a least two current Board members who have a proven track record of providing inaccurate, and less than factual information to the membership depending on the issue. If they are "for" the issue; you get the truth and the real facts. If they are "against" an issue; you get fabrications based on their own personal opinions which they present as fact...until homeowners do their homework and find out differently.

With that said, several homeowners requested copies of all the attorney information and was told by the management company that the information is covered by the attorney/client privilege between the Board of Directors and the hired attorney. Many of us that are concerned are Ex-Board members and have never used the excuse of attorney client privilege when distributing (or not distributing) information to the neighborhood WHEN it actually concerns the ENTIRE neighborhood.

We certainly appreciate "attorney/client privilege" when it is of a personal nature between individual homeowner(s) and the Board. But in this situation, isn't the entire "association and its membership" the true client and not just the 5 Member Board of Directors? Especially when considering the issue of a merge that the entire neighborhood will need to vote on?

Just to be clear, I am aware that specific information is considered attorney/client privilege and not subject to disclosure. I am also aware that does not mean the Board of Directors is forbidden from disclosing it...correct?

Feel free to enlightened me on the following:

1. What "specific" information is considered as attorney/client privilege and for the Boards Eyes Only.
2. In a situation such as this, would it not be in the best interested of the association to disclose the information about the merge process.
3. What information does the membership have the right to receive? The 5 member board certainly is not paying out of their own pockets for attorney information, all 74 homes are paying for the information from our membership dues.

Look forward to your insight, advice and opinions.

Hi Carol:

Potentially one issue might be that the Management Company itself cannot give the information as a third party. It potentially is attorney/client between the Attorney and HOA, so the MC might not be in the position to release without board permission. Have the members made the request directly to the HOA Board?

LOL … If the Board denies then I would be helping Larry attach the letter to the neighbor homes. If you roll them like a tube and attach to door knobs with rubber bands it will keep the wind from blowing them away.

I agree with Larry that the members have every right to the information before making their decision. I certainly would not agree without the full disclosure if I was in a similar position.

Talk about starting off on the wrong foot......LOL