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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? – L235 May 26 '15 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 May 26 '15 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 Jul 1 '15 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 Jul 1 '15 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 Jul 1 '15 at 16:39
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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.

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    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 Jul 1 '15 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 Jul 1 '15 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 Jul 1 '15 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 Jul 1 '15 at 15:54
  • @Andrew -- also a good meta question: meta.law.stackexchange.com/questions/84/… – feetwet Jul 1 '15 at 16:16
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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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Attorney-Client privilege only applies when a client tells an attorney something. See the Wikipedia article. Based on the description you gave, the communication was not privileged, and so yes, the board member can share the information with his or her personal lawyer. However, the board member may have signed agreements to not disclose information, which is not under the scope of Attorney-Client privilege restrictions.

  • Hmm. The President of the Board told me (she is a lawyer of 25 years experience and I am a Member At Large (IANAL), that I specifically could NOT discuss it with my individual lawyer. (In this instance, I am an individual person, a homeowner (jointly with my spouse who is not a board member) and a member at large of the board. – CGCampbell May 26 '15 at 23:28
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    @CGCampbell that may be from an NDA or something, not the attorney-client privilege. Although I'm not a lawyer, and you should please do not do anything in a court based on what a random dude from the Internet said. – L235 May 26 '15 at 23:30
  • Oh don't worry, i won't. I'm going to see if the company I work for has a benefit of lawyers for it's employees. – CGCampbell May 26 '15 at 23:35
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    Attorney-client privilege applies to when an attorney tells a client information as well. – Andrew Jul 1 '15 at 15:42

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