Is the Attorney-Client Privilege Still Viable for Florida's Condo Boards?
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Loose Lips Sink Ships - Board Discussion of Obtaining Legal Advice Results in Waiver of Privilege.
Communications between an attorney and his or her client have been privileged and confidential for basically as long as there has been a legal system. Some say the attorney-client privilege has its roots in ancient Rome. Early English common law recognized the privilege as important to encourage disclosure of information that may be necessary for the attorney to provide effective counsel without fear of the information becoming public. Its no surprise that Florida's legislators recognized the value of the privilege and excluded attorney-client privileged documents from member inspection rights in Section 718.111(12), Florida Statutes.
Community association board members may not understand the privilege or how to protect the confidentiality of advice received from the association's attorney. Now and then I receive a copy of my letter to one client from another client asking whether the issue applies to them. I cringe when a contractor's attorney calls after receiving a copy of my letter identifying weaknesses in my client's position. The association is the client and has the right to voluntarily waive its privilege - but was there a discussion of the consequences of the waiver or was the disclosure by one board member who "was just trying to help"? Unfortunately, once the cat is out of the bag its very difficult, and in some cases impossible, to prevent further disclosure.
A recent Summary Final Order from the Arbitration Section of the Division of Florida Condominiums, Time Shares and Mobile Homes demonstrates that the privilege may be waived unintentionally, simply by discussing whether to obtain legal advice on a particular issue in an open forum.
In this case the board proposed increasing the budget by more than 35%. Owners questioned the board's authority to adopt such a large increase without the affirmative vote of the members. The discussion of whether the board should adopt the budget or obtain legal advice first was at a duly-noticed board meeting. Ultimately one of the board members made a motion to seek legal advice and the majority of directors voted in favor.
Later, one of the owners requested access to the official records, including the legal opinion analyzing the governing documents with respect to the budget increase. The association allowed access to all the requested records other than the legal opinion. The arbitrator ruled that since the board discussed the issue at an open board meeting there was no intent to keep its subsequent communications with or advice from the attorney confidential. The board was ordered to make the legal opinion available for inspection.
There is a lesson here - community associations may need to have policies in place to safeguard confidential information. Board members should understand this valuable privilege and think twice before discussing any sensitive legal issues in an open forum or with any third parties.
