In last week’s article, Dan discussed the use of the executive session during board meetings to conduct privileged conversations. As an extension of this topic, we are often asked to consult on how the attorney-client privilege impacts dissemination of the attorney’s opinions to the other members of the Association and requests for association records.
The primary rule is that the actual document containing communications between the lawyer or the law firm and the members of the board should not be copied, published or otherwise shared with the members of the Association. While such a document might technically be an Association record, the document must be withheld to protect the attorney-client privilege.
In Washington & Oregon, the attorney client privilege doctrine is found in RCW 5.60.060(2)(a) and ORS 40.225(1)(d) respectively. The statutes are dissimilar in language, but both provide that neither the attorney nor the client can be compelled to disclose communications made by the client to the attorney, or vice versa, when made in the scope of giving or receiving legal advice. The rule covers oral statements as well as written documents and correspondence passing between the client and the attorney.
When the Association is the lawyer’s client, the documents that are protected are those between the lawyer and the primary control group – the members of the board of directors. Association managers can be included as part of the client group if they are “necessary agents” of the Association. There is no published case in Washington or Oregon that makes this determination, so the determination of whether the community manager is a necessary agent must be made on a case by case basis within the context of the communication itself.
As Dan mentioned last week, the privilege requires that the board have discussions with counsel concerning legal advice in executive session. The actions taken after the session should be reported in the minutes, but the minutes should not say such things as “the association’s attorney advised us to do X” or “the attorney thinks we do not have a good chance of prevailing.” Including such statements in minutes could result in a dispute as to whether or not the Association has waived it attorney client privilege.
As always, the best course of action to take if an Association questions what should be reported in the minutes or receives a request for a document containing potential legal advice is to should consult its attorney before sharing or disclosing any such communications.