Attorney-Client Privilege

Started by DonN • 4 replies • 4943 views

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DonN (Michigan)
Posts: 357

Posted:

On12/29/2009 4:06 PM, LarryK1 who is an attorney, posted a discussion concerning the attorney-client privilege in Homeowner demanding financials. Rather than comment on the attorney-client privilege in that thread, I believe the subject justifies its own thread.

The referenced forum provided an interesting discussion on members' rights of access to owners association records, attorney opinions, and related issues. It also includes excerpts of laws of several states concerning access to records which includes members' access to correspondence between the owners association and the association's attorney.

Owners associations create some unique relationships between the organization and its attorney, which is usually limited to issues between the organization and third parties.

However, many of the legal issues in an owners association are between the association and its members. All of the governing documents fit into this second category. Interpretations affect the association, its board and its members.

Under law and the Rules for Professional Conduct, the client is the organization, not the board and not individual members. But the organization must have an agent to communicate and direct the attorney. Oversight is important to ensure that communications to attorneys that provide the necessary information and facts are full and accurate and that the direction doesn't build in the answer the agent wants. Without access to communications to and from the attorney, members cannot exercise that oversight.

The attorney-client privilege is exercised by the client — the owners association.

What documents and information should be subject to attorney-client privilege? Who should exercise the privilege? What are the criteria? How can oversight be conducted? There are obviously many more questions.

Don Nordeen
Governance of Property Owners Associations

DonnaS (Tennessee)
Posts: 5,671

Posted:

Florida's explaination or definition of client/lawyer privledge
From Statute 720:303
1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including, but not limited to, any record prepared by an association attorney or prepared at the attorney's express direction which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association and was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings until the conclusion of the litigation or adversarial administrative proceedings.

So to further define what is---
From 90.502

90.502 Lawyer-client privilege.--

(c) A communication between lawyer and client is "confidential" if it is not intended to be disclosed to third persons other than:

1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.

2. Those reasonably necessary for the transmission of the communication.

(2) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.

(3) The privilege may be claimed by:

(a) The client.

(b) A guardian or conservator of the client.

(c) The personal representative of a deceased client.

(d) A successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence.

(e) The lawyer, but only on behalf of the client. The lawyer's authority to claim the privilege is presumed in the absence of contrary evidence.

(4) There is no lawyer-client privilege under this section when:

(a) The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.

(b) A communication is relevant to an issue between parties who claim through the same deceased client.

(c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.

(d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.

(e) A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.

(5) Communications made by a person who seeks or receives services from the Department of Revenue under the child support enforcement program to the attorney representing the department shall be confidential and privileged as provided for in this section. Such communications shall not be disclosed to anyone other than the agency except as provided for in this section. Such disclosures shall be protected as if there were an attorney-client relationship between the attorney for the agency and the person who seeks services from the department.

(6) A discussion or activity that is not a meeting for purposes of s. 286.011 shall not be construed to waive the attorney-client privilege established in this section. This shall not be construed to constitute an exemption to either s. 119.07 or s. 286.011.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Of interest to this subject,
Our SC Lawyer has advised our association (Condo) that when in ES the procedure is;

Notice for ES should state the reason for assembly. The meeting will be closed and can include the Lawyer, or special invitees of the BOD. Once the subject is on the table for discussion, no records will be kept of any kind, no minutes will be taken and only the results are announced. There is to be no reference made to how a conclusion was derived and all notes, written opinions or any other written references are to be destroyed. Any votes taken will be destroyed and no announcement made of the results of votes.

If no recommendations are announced by the Board, no references to this decision need be made. If the Board makes a ruling or announcement, only the decision need be disclosed and no explanation need be made.

I have no idea what effect this could have down the line if Attorney Client privledges are questioned.

RogerB (Colorado)
Posts: 5,067

Posted:

The executive session has been discussed many times. Following is an answer to a question on what the members of the association must be provided when there is an executive session.

RogerB (Colorado) Posts:4115 02/21/2007 6:56 PM Quote Reply
"Greg, the details of an executive session do not have to be identified. However, the executive session should be in the agenda and include a general identification of the purpose. Some reasons for the executive session are to discuss legal matters, employe matters, and information which must be maintained as confidential, such as contractor bids which have been requested to be confidential.

No vote should be taken in an executive session; voting, if necessary, is conducted in the meeting after the executive session. Thus, the motion and vote must be recorded in the minutes. The discussion in the executive session is not recorded in the minutes which are available to the members."

DonnaS (Tennessee)
Posts: 5,671

Posted:

Perhaps it would be a good idea for the individual States to include in their HOA Statutes, Laws and or Charters, what constitutes "Attorney/Client Privledge", specificall for HOA referencing. I posted above what Florida uses but it is not specific to HOAa alone. Just my opinion.

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