Attorney-Client Privilege for Managers
Bennett Taylor
Many community managers have likely received a message from a lawyer stating that attorney-client privilege protects an email or other form of communication. While many people can sense a degree of urgency or confidentiality around that phrase, some are not sure what it is or how it works. To most effectively serve community associations, managers should be familiar with the concept of attorney-client privilege and how to use it appropriately.
Generally speaking, attorney-client privilege has existed for centuries to facilitate discussion between a lawyer and their client. Attorney-client privilege may be claimed by the client or the lawyer with respect to confidentially obtaining or providing legal assistance and an opposing party may not obtain this communication.
As a refresher, community associations are distinct legal entities as non-profit corporations. Accordingly, at a minimum, persons withstanding to assert the privilege are board members. A contentious question that arises for associations is whether attorney-client privilege applies to community managers as agents to the association. The prevailing legal tests in evaluating this question are factually specific and the answer is not always certain.
The first legal test is the “control group” test, which states that the communicant must be in a position to control or to substantially participate in the decision about any action taken based on the lawyer’s advice or that she/he be a member of a group having such authority. Case law indicates that such participation must be more than simply relaying facts or information. The participation should include advising decision- makers based on the information in front of them. Therefore, if a community manager is assisting the board in processing material information related to legal advice from the lawyer and providing insight to figure out how to proceed, it’s likely that a community manager’s communication, or a lawyer’s communication to a community manager, would be protected by attorney-client privilege.
The other legal test applied in this situation is the “subject matter” test, which looks to the status of the communicant and
30 Community Associations Journal | July/August 2017
content of the communication involved. Here, attorney-client privilege extends to an agent of the association, so long as the communication is on behalf of the association and relates to obtaining legal advice. There is no requirement that the agent have a degree of control or input related to how the association decides to proceed on legal advice. It is also critical that the communication concern legal issues respecting the association. Case law indicates that communication that is administrative or business-like in nature is likely not protected.
Integrating these two tests together, if the community manager is appointed to act on behalf of the association, assists in making legal decisions on behalf of the association based on the advice from its lawyer and requests legal assistance on behalf of the association as its agent; it’s likely that the privilege will extend to community managers in addition to board members. To be sure though, the privilege may be waived, which could damage to a legal claim by or against the association.
Commonly, actual waiver is how most associations waive attorney-client privilege. Generally, this means the disclosure of privileged communication to a person not protected by the privilege. If such a disclosure is made, the privilege is destroyed.
Community managers should scrutinize who is requesting information connected to legal matters concerning the association or to whom to send such information. Sometimes, it is not obvious that the privilege would be destroyed. As mentioned above, the board of directors is the client represented by the attorney. Under some case law, that means disclosure of privileged information to homeowners not on the board would render those communications no longer privileged. Similarly, a common yet critical mistake is for a community manager to forward an email or other information to a vendor not in the circle of privilege. Retaining privilege between the association, its agents and its attorney is of the utmost importance.
On its face, evaluating whether certain communications are privileged or if disclosing information to a person would eliminate said privilege appears simple, but as described in this article that may not necessarily be the case. And as always, if you have any questions, be sure to consult your lawyer before proceeding.
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