Can official information protected by attorney-client privilege be shared with personal lawyer?

Question

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?

Answer 1

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.

Answer 2

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.