Can an Association Waive the Attorney-Client Privilege by Including Its manager in Litigation-Related Communication
Can an association waive the attorney-client privilege by including its manager in litigation-related communication? The answer is maybe.
One of the oldest and most fundamental US legal concepts is the attorney-client privilege. The attorney-client privilege protects communications between a client and his or her attorney, preventing the attorney from being compelled to testify to those communications in court. The United States Supreme Court stated that by assuring confidentiality, the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation.
However, this privilege is not absolute and in certain circumstances can be waived. Communications made in non-private settings or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and therefore are not protected by the privilege.
Recently waiving the privilege became a real-world issue for associations in the case of Las Olas River House Condominium Ass’n, Inc. v. Lorh, LLC. In the course of the case, the owner asked the association to disclose all communications between the association, its attorney, and management. The owner argued that the association waived the privilege when it included the manager in communications with the attorney.
Surprisingly, the trial court agreed with the owner and ordered that all those communications be disclosed! The association appealed, and subsequently “won” the appeal but unfortunately, this was no big victory. The appellate court told the trial court to reexamine the issue instead of ruling that these communications were inherently protected by the privilege. This leaves open the possibility that these communications may still not be protected.
The reality is that this case ignores the relationship that the vast majority of associations have with their managers. Managers are and should be, aware of the litigation facing the communities they manage. With this in mind, how do we make sure that litigation-related communications between the association, attorney, and management stay protected?
As a result of this case, associations may want to include language in their management contracts that expressly extends the attorney-client privilege from the association to include the manager. The following is an example:
“In the event that the association becomes involved with, or contemplates, any litigation, it may become necessary to transmit communication between the association and its attorney through, or with the knowledge of, the management company and/or the management company’s employees. It is the intention of the association that any such communication between the association, its attorney, and the management company and/or management company employee (including communication-related thereto just between the attorney and management company and/or management company employee) be considered confidential and protected by the Attorney-Client Privilege as provided in Section 90.502, Florida Statutes.”
While including this language does not guarantee that any such communication will be protected it certainly bolsters the case that the association intends to always keep that information confidential. When and if there’s even a binding legal decision on this issue, please follow this blog or contact me and we will let you know.
For more information on this issue or other association, questions contact the attorney Kevin Obos.