Sharing Attorney Letter of Member

Started by HaleyH • 13 replies • 867 views

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HaleyH (Illinois)
Posts: 67

Posted:

Hi - I won't get into all of this But a member asked us, the Board to give him a copy of an attorney letter sent on behalf of another member who is fighting dog fines. The Attorney sent the letter to the Board stating the fines were in dispute. I would think as the Board we are NOT allowed to share this legal document with another member.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

No. The Board is the client of the attorney. It's client/attorney privilege. All will be revealed in court. If that person isn't involved with the case, then why do they need it?

Former HOA President

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By HaleyH on 03/20/2018 6:07 PM
Hi - I won't get into all of this But a member asked us, the Board to give him a copy of an attorney letter sent on behalf of another member who is fighting dog fines. The Attorney sent the letter to the Board stating the fines were in dispute. I would think as the Board we are NOT allowed to share this legal document with another member.

I would disagree with Melissa that this particular letter is potentially NOT attorney/client privilege. If I am reading your posting correctly the letter was from a homeowner’s attorney to the BOD disputing a fine. That potentially is not HOA and their own attorney privilege and potentially other owner’s should be made aware of a dispute and the reasons the owner’s attorney has stated, so they can research the documents and laws to protect their properties. Some states are now requiring the BOD to get membership approval to file any lawsuits against owners for such items, so how are the owner’s supposed to know how to vote unless they had the facts? I would contend the owners have a right to know the contents of an outside response so they can address with their BOD to avoid potential legal confrontation and litigation which could cost them a lot of money down the road.

HaleyH (Illinois)
Posts: 67

Posted:

Hi - Let me clarify. A member of the HOA hired an attorney to send the Board a letter explaining that the fines we are charging her client are without cause. Another member within the HOA (the ex president) wants the Board to send him a copy of this attorney's letter. No lawsuit is in play ~ yet. CAn we (The Board ) able to share the attorney letter with another member (whose interest I guess is making sure that the Board follows through with the fines on the other member).

DouglasM6 (Arizona)
Posts: 724

Posted:

I would ask for permission from the member disputing the fines AND/OR their attorney before sharing it. I'm 100% sure their attorney will have no problem with it, but why take a chance.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

For me, I don't think they need a copy. They aren't on the board. They can't make any legal actions or opinions for the board. So they just want to use the letter to give legal advice to the board on how to handle this? Plus the letter should have been read at a meeting if it's not part of any lawsuit.

Can your HOA enforce fines? Do you have a fine schedule? Is it in your documents that you may enforce fines? It's not an inherent power to all HOA's. Plus there has to be a defined scale for the fine. Like $25 per day for garbage can not put up etc... It can't be random or not known to the membership.

Be careful with fines... Some states fines are not very enforceable. You can't lien or foreclose for liens in many states. So it's best to really consult a lawyer and not larry down the street...

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

I agree with Douglas.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By MelissaP1 on 03/20/2018 6:57 PM
No. The Board is the client of the attorney. It's client/attorney privilege. All will be revealed in court. If that person isn't involved with the case, then why do they need it?

Attorney-client privilege applies to the attorney. The client can share all the info they wish with anybody they want to.

KerryL1 (California)
Posts: 14,550

Posted:

So far as I know, Melissa, the Board is not the attorney's client, the Association is.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By HaleyH on 03/21/2018 5:01 PM
Hi - Let me clarify. A member of the HOA hired an attorney to send the Board a letter explaining that the fines we are charging her client are without cause. Another member within the HOA (the ex president) wants the Board to send him a copy of this attorney's letter. No lawsuit is in play ~ yet. CAn we (The Board ) able to share the attorney letter with another member (whose interest I guess is making sure that the Board follows through with the fines on the other member).

As long as there is no lawsuit filed the BOD can choose to do as they feel is in the best interest of the HOA. If the HOA ends up in a lawsuit then the HOA would need to follow your state laws regarding privacy at that point. My “personal opinion” is if an HOA is potentially charging a member without cause and receives a letter stating such ... potentially all the members should be made aware of the issue because if there ever was a legal battle THEY are the entities who will be footing the BILL and paying lots of $$$ for any potential lawsuit. The Owners should be kept updated on how their BOD is conducting business and if conducting appropriately.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By KerryL1 on 03/21/2018 7:04 PM
So far as I know, Melissa, the Board is not the attorney's client, the Association is.

YES, YES, YES, yes, yes, yes !!!!!!!!!!!!

HaleyH (Illinois)
Posts: 67

Posted:

Thank you for the advice. I will recommend to the other Board members that we share the attorney letter with all members. The current Board is getting pressure from old Board members that we pursue a lien on the dog owner/member. This needs to be shared with all members of the risk of getting hit with a lawsuit should we go down that path.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You most likely can not lien for fines. It depends on your state and how you do the finances. Example like applying dues to fines... So make sure your enforcement ability is in line with the law before doing anything.

I did not say not to share the letter, I just don't think a person needs a personal copy.

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

I agree with Douglas, Haley, who write "I would ask for permission from the member disputing the fines AND/OR their attorney before sharing it. I'm 100% sure their attorney will have no problem with it, but why take a chance."

I'm not as sure, though, as Douglas is.

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