BY PETER S. SACHS – THE ASSOCIATION BARRISTER
The attorney-client privilege is fragile. It is based on the reasonable intent of the persons holding the privilege. It is imperative that board members take reasonable precautions to keep attorney-client privileged materials secret.
This means separating privileged materials from other official records kept by the association. Mixing attorney opinions and e-mails with other documents, makes them more likely to be examined accidentally, for example, responding to a request to inspect and copy the official records of the association.
It means taking careful precautions to share attorney-client privileged opinions only with the group in control – often the entire board of directors and sometimes the association’s manager. It is possible to limit the control group further by forming a legal committee. A legal committee can better protect the contents of the opinion from disclosure to non-members of the control group. This works especially well in communities with a large board of directors.
We are often asked about closed meetings. There are subtle differences in the laws regulating condominiums and homeowners’ associations.
In a condominium, board meetings at which a quorum of the board is present, must be open to all members. However, meetings between the board or a committee and the association’s attorney, may be held privately, if the meeting is to discuss proposed or pending litigation, and the purpose is to seek or render legal advice. Closed board meetings may also be held to discuss personnel matters.
In a homeowners’ association, a board meeting must be open to the members if a quorum of the board is present to discuss association business. Meetings may be closed to discuss proposed or pending litigation, if the discussion would otherwise be governed by the attorney-client privilege. Meetings of the board to discuss personnel matters may also be closed.
It may be tempting to share legal opinions or mental impressions of the association’s attorney with persons outside the control group, to prove a point or to substantiate an action by the board. Sharing attorney-client privileged materials with anyone outside the control group breaks the attorney-client privilege forever and is rarely a good idea. Please check with counsel first, when privileged materials are involved.
Peter S. Sachs is the managing director with Sachs Sax Caplan in Boca Raton, Fla.