During a homeowners association executive session, the board members were given a briefing protected under attorney-client privilege. A board member is now concerned about his/her personal liability due to the (in)action of the board as a whole. The Association's lawyer (hired to represent the Association, not individual homeowners) presented the board members with information about prior case law which directly affects how the Board should handle a specific topic. Before giving his presentation, the lawyer stated that the "following information I am going to share is protected by attorney-client privilege. It is being given to you in the official context of being elected board members. You may not share this information outside of this meeting without the express permission of the Board by way of vote."

Can an individual share with his/her personal lawyer, attorney-client privilege protected information learned while acting in his/her official capacity, in order to determine personal liabilities?

  • Please clarify what you mean by "the board members were given a briefing protected under attorney-client privilege". Were the board members acting as attorneys or as the clients?
    – Kevin Li
    Commented May 26, 2015 at 22:30
  • Does that clarify it enough? I am trying very hard not to discuss this in any form of specifics, DUE to the A-C Privilege invocation.
    – CGCampbell
    Commented May 26, 2015 at 23:25
  • What does "official" in the question have to do with? When I read that I think of information that a court has determined is attorney-client privilege
    – Andrew
    Commented Jul 1, 2015 at 15:55
  • @Andrew - I would also take it (particularly in this question) to mean "ex officio." Here the "official" information is obtained through an official capacity as an officer of the association. But the title does merit a tweak to make that clear (coming up...).
    – feetwet
    Commented Jul 1, 2015 at 16:20
  • After looking it up, yes, I meant ex-officio. When it comes to my home, I am a private person (home owner) and at the same time, I was an officer on the board of the homeowners association. So for most discussions, I would have to 'set aside' my homeowner's ... perogatives(?) ... and work as an officer of the board, which may, depending on the topic, would require me to work against my own desires AS a homeowner. (i.e. we might require all homeowners to paint their shutters, me as a homeowner might not want to)
    – CGCampbell
    Commented Jul 1, 2015 at 16:39

2 Answers 2


Attorney-Client privilege is a one-way duty: The Attorney has to maintain protected information in confidence. It's a professional duty supported in law. There is no corresponding duty for the Client to maintain anything in confidence. The client can waive the privilege at will. Some sample limitations to waivers are governed by Federal Rule Evidence 502.

(Granted, in this scenario the concerned board member may be bound by some confidentiality agreement or fiduciary obligation as a consequence of service on the board, or membership in the association, but that's a different matter.)

The ABA points out , in its article "How to Lose Attorney-Client Privilege" that:

Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law.

In this "Ten Things" article the author points out:

Business advice, however, is never privileged and – for in-house counsel in particular – the line between the two can appear blurry. ... If a document that is otherwise privileged is shared with third parties, then the privilege is lost. ... A common misperception among the business is that all confidential information is privileged or if they label the communication as privileged they can keep the documents out of the hands of third parties. As we’ve seen, this is not correct and the fact that there is a non-disclosure agreement or other type of confidentiality agreement in place will not make a document privileged nor will it preserve the privilege if it is disclosed to a third party.

  • 1
    You would maintain confidentiality if you spoke with your personal attorney because of the A-C privilege there. Even if you have a fiduciary duty to the board, they cannot prevent you from protecting yourself. If it is that big of a cluster, bail from the board. haha
    – Andrew
    Commented Jul 1, 2015 at 13:52
  • I upvoted yours because yours is the correct answer; however, can you cite to the MRPC or caselaw that states A-C is at the whim of the client. If you want help finding caselaw, I will.
    – Andrew
    Commented Jul 1, 2015 at 13:53
  • @Andrew - yes, if you can readily find citations to support that would be great, and you can edit the answer to get a little rep for your trouble. I wish we could bring every (correct) answer up to the quality of a mini law-review article. I wonder if we could get any law schools to endorse this and give students similar credit? Any ideas on that please note on meta!
    – feetwet
    Commented Jul 1, 2015 at 14:07
  • I just answered a question on meta about citations. Also, since we do not yet have a critical mass of voters to determine correct answers, what can we do when the reasoning of an answer is incorrect (like the answer by L235).
    – Andrew
    Commented Jul 1, 2015 at 15:54
  • @Andrew -- also a good meta question: meta.law.stackexchange.com/questions/84/…
    – feetwet
    Commented Jul 1, 2015 at 16:16

Attorney-Client privilege permits, and requires, the Attorney not to disclose communications with the client. This includes both things that the client tells the Attorney, and things that the Attorney tells the client. It also includes documents.

It is limited. only legal advice, not business advice, is covered. Only confidential communications not shred with third parties are protected Plans to commit crimes or fraud are not protected. There are other limitations, and the vary by jurisdiction.

The privilege does not forbid the client from discussing things with a third party, but if the client does so, the client has normally waived the privilege. However, if the client seeks legal advice from a different lawyer, that communication would also be privileged, and so the privilege on the original communication has probably not been waived.

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