LITIGATION

“My association is currently in litigation. Despite my repeated requests, the Board will not share certain documents with me, including letters from the association's attorney that discuss the status of the case. The Board says they are privileged and cannot be shared with me. As an owner and a member of the association, I feel I have a right to review these materials. Is it proper for the Board to refuse my request?”

Absolutely. While it seems counterintuitive, sharing information like this with an owner who is not a Board member can actually waive the attorney-client privilege. That privilege extends to confidential communications between a client and its counsel. In homeowners associations, where the association is the client, the privilege extends to the Board (which is the decision-making body for the association) and its agents, such as the manager. It does not extend to each and every member simply because they are members. Indeed, the consequence of sharing such information with a member is that the privilege could be waived, meaning the materials could thereafter be viewed by the very people your association is suing. So the Board was not just right to refuse your request, it was protecting your interests when it did so.

“I am an owner of a unit within a condominium that is currently involved in litigation. I would like to know the status of our litigation. Can I contact the attorneys retained by my board directly to inquire about it?”

Yes and no. The association's attorneys have an obligation to pursue the best interests of the Association at all times. This obligation includes preserving all information discussed between the board and its attorneys under the attorney-client privilege. Because the association's attorneys are retained by the board, and not the individual owners, the attorney-client privilege does not protect communications that the attorneys have with the individual owners. Should privileged information be discussed in a conversation with an individual owner, that information may be “discovered” (i.e. learned) by any other party to the action, including the builder(s) and subcontractors.

Thus, in order to protect the association's interests, its attorneys unfortunately cannot divulge privileged material to any individual homeowner that requests information on the litigation. The association's attorneys can share any non-privileged information with those individual owners, including information that is already known to parties outside of the attorney-client privilege (i.e. information contained in court filings).