Who is the client, BOD or Association

Assume the BOD contracts with a law firm to represent the HOA for matters of legal advice. The BOD then asks the lawyer for an opinion on an action that BOD has taken. The lawyer then writes a legal opinion and sends it back to the BOD. Do the members of the association have the right to see the correspondence? Assume this is not about any pending or contemplated litigation, just a opinion on a procedural issue. Can the BOD claim attorney/client privilege and withhold the letter?

Roger and RobertG,

Interesting. Roger says the client/lawyer privedge prevails in the end.
I think RobertG is asking, in essense; who is the client? I am sure that the board member would not be the person that pays the bill and I'm pretty sure the Lawyer will send a bill to the association. Now, in effect, the board cannot spend money that the council doesn't approve of, or is not allowed to object to the expenditure. Ref: Approval of the budget. Suppose a member objects to the expenditure because the outcome of the Lawyers product (opinion) results in him being fined $500.00. Does lawyer/client priveledge prevail? I suspect this lawyer/client power is being used by a lot of boards just to exert their power and maintain the heirachy (preceived). When Roger says,"What is the reason? Does the fact that it was part his money that paid for the opinion justifying him wanting to know the opinion? I would think it does.

Let's say the association members (at an annual meeting) pass a motion that the association post the budget on the HOA website before each month's board meeting. The BOD doesn't like this and contacts the association's lawyer to determine if the board has to comply. The lawyer sends back an opinion to the board. At the next board meeting, a member asks why the board didn't publish the budget as required by the motion. The BOD states they don't have to and then states they have an opinion letter from the lawyers stating so. The member want to know exactly what the letter said (either the member doesn't believe they have such a letter or wonders how the problem was actually described and how the attorney replied). The BOD claims attorney/client privilege and won't release the letter and says it is the end of the discussion.

I will grant that any reasonable board would do things differently, but for this discussion assume the worst BOD you can.

Please don't paraphase improperly what I said Robert R1.
I answered the question which asked CAN (able to) ... , it did not ask MAY or SHOULD ... . The Board CAN do what they want; that doesn't make it right or legal. Nevertheless, what I answered was "Yes. Should they? It all depends on what is in the letter."

I tend to agree with what you said. Since I have never seen the letter and knowing that the board just doesn't want to comply, I can only guess what is going on. My really pessimistic side makes me think there really was never a request to the attorney and thus no opinion was given. I base that on the fact that the HOA's law firm is very reputable and I would find it hard to believe they would give such a response. Also, in the minutes, the board states the reason not to follow the members vote was because of a different reason than was given in the board meeting. There were just too many inconsistencies to feel like everything was above board.

Tracy,
If I am the Robert you are referring to the answer is no, I live in a Condo.

I recently wrote our Board and asked why the did not follow a specific requirement in our Master Deed. In thier meeting report they said they had turned the questions over to their attorney. I waited andd finally I hear from a board member that the Lawyer had rendered an opinion that the Board had nothing to worry about anything I had requested in my letter, all having to do with our CC&R'S. I requested a copy of the letter. A Board member told me it would violate the Client/Lawyer privledge. I don't know at this point what I will do, but it sure looks like I will need a letter.

Read all the posts on this site and others I don't find it strange that people have a lot to say about "bad boards and bad board presidents."

A sad state of affairs.

Taking the prefaced scenario, if the association members voted something, I could see a board checking with the attorney to see if it might possibly create some liability for the association in following the vote or even to check to see if the maater voted on was within the members authority, or possibly bumping up against a state or federal law (I've seen annual meetings where the members voted not to fund reserves in order to keep the assessment low, even though that would put the association in direct violation of our state law). If it did, I would expect the board to communicate that back to the members and schedule another vote to reconsider the issue. Granted, all of that should have been handled before the vote, but its conceivable a vote caught them by surprise at an annual meeting. Just because the owners voted on it, doesn't mean the board can ignore their responsibility to make sure it won't harm the association, or if it should be modified in some way, to reduce or remove potential liability. That's what the attorney is supposed to do, advise the board on legal issues.

Boards are often caught in the middle on some issues. A board that chooses to ignore the advice of legal counsel, does so at a very great risk, since they are not experts in law. If they disagree with the attorney's advice, do they look for a second opinion, at even greater cost?

And HEY - this country and a long and valued tradition of electing bad people to office, at every level. Why should a condo or HOA board be any different?

None of this may explain your particular situation, but then we don't know all of the details (the other side) nor are we attorneys.

Some reading: http://www.pillsburylaw.com/bv/bvisapi.dll/portal/ep/paPubDetail.do/pub/00008172/channelId/paCode/tabId/5/pageTypeId/9208/pubYear/2001

Reference: Smith v. Laguna Sur Villas Community Association (2000) 79 Cal.App.4th 639 [94 Cal.Rptr.2d 321]
In an action by individual homeowners’ association members to compel discovery of association documents, the court found that the condominium association was the holder of the attorney-client privilege and it was not required to disclose privileged information to the individual homeowners.

Attorney-client privilege of a Homeowners’ Association does not extend to all the property owners within the Association, but rather to the Association itself through its officers. Cove on Herring Creek Homeowners’ Association, Inc. v. Riggs, 2001 Del. Ch. LEXIS 157, at *4-5 (Del. Ch. Dec. 28, 2001) (summary judgment granted, Cove on Herring Creek Homeowners' Ass'n v. Riggs, 2003 Del. Ch. LEXIS 36 (Del. Ch. Apr. 9, 2003), aff’d, Riggs v. Cove on Herring Creek Homeowners Ass'n, 832 A.2d 1252, 2003 Del. LEXIS 472 (Del. 2003)).

Joe