The Attorney-Client Privilege protects confidential communications between an attorney and his or her client. This privilege includes communications made to the attorney and communications from the attorney. The Attorney-Client Privilege is designed to encourage clients to communicate with their attorney freely, without fearing disclosure of those communications made in the course of representation. The Attorney-Client Privilege is important because it permits clients to give their attorney complete and uncensored information, enabling their attorney to provide informed and thorough legal advice.
For community associations, the Attorney-Client Privilege belongs to the association and can only be expressly waived by the a decision of the association board or executive organ. However, the privilege can be impliedly waived based on the client’s conduct. A determination on whether the privilege has been waived will depend on the specific facts of each case. The association will have to establish that the attorney-client relationship existed, that the communication is privileged, and that the privilege was not waived.
Here are four basic tips for the board of your Common Interest Community to follow so that it protects the association’s Attorney-Client Privilege:
1. Don’t expressly waive the Attorney-Client Privilege without advice from the association’s lawyer. To expressly waive, the board of directors would have to vote on the issue. It is very unlikely that association counsel will advise the board of directors to waive the privilege.
2. Take precautions to protect against inadvertent waivers of the attorney-client privilege. An inadvertent waiver can occur, for example, when a document is mistakenly produced. This inadvertent production can happen when an owner makes a records request to the association and an attorney opinion letter is mistakenly included in the produced records. Virginia courts will focus the analysis on whether the community took precautions to safeguard the documents. The association should establish a policy on producing records and make it part of the contract it has with management. For example, the policy should require attorney communications to be kept separately in a file marked “Confidential” “Attorney Client Privileged Communications.”
3. Ensure that board members are aware of their fiduciary duties so they do not create an involuntary waiver of the Attorney-Client Privilege. An involuntary waiver occurs when a current or past board member shares an attorney opinion letter to which he was privy during his board term. If the disclosure is involuntary, the court will likely determine that the Attorney-Client Privilege was not waived.
4. Educate board members on the Attorney-Client Privilege. The association can protect its Attorney-Client Privilege by establishing policies on record retention, email communications, and records disclosure, and by educating its board and manager on how to protect the privilege. For example, board members need to be aware of potential issues with email communications, including a board member’s use of her employer’s email account. We encourage an educational board training session with your association’s attorney.
Your association’s board should educate itself on the Attorney-Client Privilege and establish policies to protect it. Your homeowners association reduces its risk of waiving the privilege, protects its communications with its legal counsel, and eliminates its potential legal fees charged by your HOA attorney arguing in court that your association did not intend to waive its Attorney-Client Privilege.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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