Inappropriate Behavior

Started by AngelineL • 10 replies • 570 views

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AngelineL (Alabama)
Posts: 2

Posted:

Issue: a board member recently forwarded emails between the board and the HOA attorney to a member of the community and while attempting to delete the fwd/sent emails to cover his/her tracks, accidentally deleted the originals. Is is almost the end of the board’s term. While I don’t care for censure, can the inappropriate behavior be documented?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Welp... it's hard to prove that the board member forwarded deliberately or accidentally, unless the email started "Hey, Joe, get a load of this!!!" or something. However, in either case he's waived attorney-client privilege, so if these emails dealt with actions that the board was taking against the homeowner, for example, the owner's attorney is now entitled to see communications between the board and the association's attorney regarding the case.

As for the deleted emails, your association's attorney should certainly have his own copies, so nothing should have been lost. In addition, emails never completely disappear. For one thing, the board member's ISP could provide copies of the deleted emails if it were subpoenaed, as could the ISP of the recipient of the wrongly-forwarded emails.

As to whether you should document the bad behavior in some way, again there is problem of proving intent. Your version of events strongly suggests that the board member did something he should not have. But that's not good enough to go on record with, or you'll likely have a defamation complaint filed against the rest of the board.

SheliaH (Indiana)
Posts: 6,964

Posted:

This calls for an executive session of the board so the issue can be discussed and the board member can explain him/herself. You may not be able to prove intent - he/she can always say it was an accident and tried to recall the message, so how would you prove otherwise? I don't know if this deserves a full-blown censure, but that board member should be told in no uncertain terms this behavior is unacceptable.

To keep this from happening again, you may want to consider designating one board member to be the liaison between the attorney and the board. When I was on the board our association attorney had a website where designated board members could log on and see the correspondence between him and the designee (at that time, it was either me {I was treasurer} or the president) and we would forward a summary of the traffic to the rest of the board so everyone was in the loop

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CathyA3 on 12/17/2019 5:28 AM
However, in either case he's waived attorney-client privilege, so if these emails dealt with actions that the board was taking against the homeowner, for example, the owner's attorney is now entitled to see communications between the board and the association's attorney regarding the case.

Do you mean that attorney-client privilege is now lost for the emails that this one director sent to the one homeowner, but attorney-client privilege remains for all other communications between the board and HOA attorney?

As for taking, say, public punitive measures against the director, I think there is some risk that doing so will further publicize the confidential emails between the board and the HOA attorney. This could further jeopardize the Board's legal position. Right now, I think the Board should explain the situation to the HOA attorney and then ask the HOA attorney to write the offending director a formal letter, cc'ing the board, and explain that he/she has breached his/her fiduciary duty. (Of course, the HOA attorney may have a better suggestion.) In executive session; with the director absent (somehow); given how little time is left in the director's term; and if the HOA attorney agrees: I think I would move to not allow the offending director to attend executive sessions or be privvy to any privileged communications. She or he by all appearances is too much of a risk. At this point, I think the only records she or he should be allowed to see are the same ones as an ordinary member.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Angeline,

Can you provide some detail wrt how you know all this occurred?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By AugustinD on 12/17/2019 6:21 AM

You made me look.

I was pretty sure the loss of prvilege applied to litigation or threatened litigation involving the owner who received the forwarded emails and the subject/topic under dispute. This quote from a law firm's blog says:

"In general the attorney-client privilege shields communications between an association and its attorney for materials prepared in anticipation of litigation or trial. Such communications usually lose their privilege if made in the presence of a third party.

However, I went back and read information from my association attorney's blog, and it sounds more general. Quote:

"In order to prevent the unintentional disclosure of information, board members should always refrain from sharing communications from their attorney with third parties." The blog entry even cautioned against sharing copies of a legal opinion or recommendation with the community at large - if we want to share, they recommend having a "Dear Homeowner" letter drafted that could be shared with all.

So... long story short... I'm not sure. It can't hurt to zip lip about any items currently under discussion, but some board members feel that lacks transparency. (I agree that it does, but there are some things we can't be transparent about.)

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CathyA3 on 12/17/2019 7:36 AM
This quote from a law firm's blog says: "In general the attorney-client privilege shields communications between an association and its attorney for materials prepared in anticipation of litigation or trial. Such communications usually lose their privilege if made in the presence of a third party

I agree that the specific attorney-client communications that were accidentally or intentionally released to third parties lose privilege. But all other communications (that were not accidentally or intentionally released) remain attorney-client privileged.

Maybe I am misunderstanding your posts here?

Otherwise, what you quoted from your association attorney's blog mirrors what I have seen on the subject.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By AugustinD on 12/17/2019 8:00 AM

I may be completely off base here, but I understood that breaching attorney-client privilege means that the attorney can now be compelled to disclose all confidential information about his client that is related to the case (with certain exceptions), not just the already disclosed item.

In other words, it's not the individual piece of information that loses privilege, but the protections of the attorney-client relationship that are lost.

If you know of some resources that say I'm wrong, I'd love to see them. I've searched a number of web sites and none of them spelled out exactly what I'm trying to find.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CathyA3 on 12/17/2019 8:48 AM
I may be completely off base here, but I understood that breaching attorney-client privilege means that the attorney can now be compelled to disclose all confidential information about his client that is related to the case (with certain exceptions), not just the already disclosed item.

In other words, it's not the individual piece of information that loses privilege, but the protections of the attorney-client relationship that are lost.

If you know of some resources that say I'm wrong, I'd love to see them. I've searched a number of web sites and none of them spelled out exactly what I'm trying to find.

What you suggest is the law on attorney-client privilege does not make sense to me. You seem to be saying that, if even one email from attorney X to client X accidentally gets sent to opposing counsel Y, then opposing counsel Y may now successfully seek and obtain all communications between the attorney and client. In many cases, this would render attorney X (or any subsequent attorney for client X) virtually powerless to represent client X. This seems at odds with a client getting representation as fair as possible, even when attorney-client mistakes happen. It seems fundamentally unfair.

Here's a little chatter about a seminal case on the subject of privilege: https://www.duanemorris.com/articles/article2891.html . Summary: An attorney's memorandum on behalf of client Westinghouse corporation was released willfully to two government agencies. Another party to the dispute said the attorney-client privilege for this memorandum was now fully waived. This other party claimed it was legally entitled to a copy of the memorandum. Nothing else was sought. No where is a claim made that these other parties are entitled to all communications between the attorney and Westinghouse.

No big deal. My position (here in the anonymity yada of today's buzillion recreational internet posts) is what it is.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Angeline

OK so the mistake was made. What do you want, a pound of flesh? If the person is soon rotating of the BOD then let it go.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Has Angeline provided more information?

If not, then perhaps we wait until she does so ... continuing to address an incomplete summary/issue doesn't make a lot of sense.

Whenever this happens it serves as impetus for us to argue among ourselves, in many cases without suitable facts - or, at least clearer inputs.

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