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Preserving the Attorney-Client Privilege

As a member of a community association board, it is important for you to preserve the association’s attorney-client privilege. The attorney-client privilege generally prevents the unwanted disclosure of communications between an attorney and their client.  For example, if an attorney provides their client an opinion about the strengths and weaknesses of a potential case, third parties are not entitled to compel the disclosure of this communication without the client’s consent.

Board members must remember that generally the attorney’s in our office do not represent the individual board members.  Our office represents the association, a non-profit corporation.  Since a corporation is an artificial “person” without a mind of its own, the privileged communications between our office and the corporation are usually conveyed to the authorized agents of the association.  These agents include the board members, officers, and usually property managers.

Board members should refrain from sharing communications from our office with third parties to preserve the attorney-client privilege.  Sharing these communications with third parties such as owners and tenants in the community may operate as a waiver of the attorney-client privilege.  Waiving the attorney-client privilege may undermine the association’s ability to resolve, settle, and litigate cases as well as inhibit the board’s ability to gain meaningful legal advice from the association’s attorney.

There may be occasions when a board member or even the majority of the board members may want to share the information contained in an opinion letter or recommendation letter from our office with the rest of the community.  Simply sharing that letter with the owners and residents will likely operate as a waiver of the association’s attorney-client privilege.  Rather than sharing our opinion or recommendation letter, the Board may share this information with the owners by drafting their own letter to the community re-stating the information contained in the letter from our office.  The Board may also have our office draft a letter for the board to send to the community conveying the information contained in the opinion or recommendation letter.

In order to prevent the unintentional disclosure of information, board members should always refrain from sharing communications from their attorney with third parties.