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Subject: Board cliaming "Privacy" to disclose documents
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Author Messages
BobS27
(Georgia)

Posts:3


02/15/2021 5:38 PM  
Hello-

I live in a 31 unit condo building in downtown Atlanta. We had a developer build new condos behind our building and supposedly send our attorneys letters claiming our building was on their property essentially trying to force us to rebuild a collapsing loading dock. I am not looking to discuss the claim but how our HOA Board is handling the situation.

They have spent $16k on legal fees to go back and forth and are asking for a special assessment of $50k and a dues increase of 10% to cover the cost. I have requested the documents on what the lawyers are discussing and what the new development/development company is demanding. I have been told that it's "privy" to the board and a privacy concern and they cannot be shared.

What are your thoughts on that? The whole situation seems shady and their have been a lot of exaggerating statements about the whole situation that could be quashed with full disclosure.

thank you.

Bob Schnittman
(404) 268-7379
AugustinD


Posts:0


02/15/2021 5:50 PM  
Posted By BobS27 on 02/15/2021 5:38 PM

They have spent $16k on legal fees to go back and forth and are asking for a special assessment of $50k and a dues increase of 10% to cover the cost. I have requested the documents on what the lawyers are discussing and what the new development/development company is demanding. I have been told that it's "privy" to the board and a privacy concern and they cannot be shared.
If neither side has filed a lawsuit in court, then all the pre-litigation exchanges by letter, phone call et cetera from the condo board's side are almost assuredly protected by attorney-client privilege. Ordinary members of the condo do not have the right to see the letters and other documentation. Responses from the opposing party arguably may be protected as well.

What you can do is (1) check the local state court system to see if any lawsuit has been filed; and (2) campaign to be elected to the board.

Note: Please do not post any identifying information. Doing so violates this forum's rules.
BobS27
(Georgia)

Posts:3


02/15/2021 6:06 PM  
Thanks.

Wouldn't the HOA be the client, not the HOA board?

thank you.
AugustinD


Posts:0


02/15/2021 6:16 PM  
Posted By BobS27 on 02/15/2021 6:06 PM
Wouldn't the HOA be the client, not the HOA board?
You are correct that technically, the HOA corporation is the client. However, for one thing, this does not mean that the HOA attorney represents each and every single member. There is no attorney-client privilege between an individual HOA member and the HOA attorney.

The HOA Board lawfully speaks for the HOA corporation on many issues. One of these issues would be lawsuits against the corporation. The HOA Board, and only the Board, gives direction to the HOA attorney. For practical purposes, the attorney-client privilege applies to communications between the Board and the HOA attorney.

Conventional wisdom is for HOA Boards to say nothing about any threatened litigation, because this gives the HOA corporation the best chances of succeeding against anyone threatening litigation.

Do continue to keep in mind that the legal structure of the HOA gives you the right to recall board members and campaign, preferably with a like-minded majority, to replace the directors.


NpS
(Pennsylvania)

Posts:4041


02/16/2021 3:25 PM  
Solid reasoning by Augustin.

Also note that the Board members are fiduciaries who are supposed to put the interests of the HOA above their own personal interests. Not so for ordinary members.

If a homeowner sued the HOA, would you as a non-suing owner want all information shared with the person suing? I wouldn't.

The suing owner can get information, but there is a Discovery process that needs to be followed - And that process could require that information be excluded via redaction.

Sikubali jukumu. Read all posts at your own risk.
BobS27
(Georgia)

Posts:3


02/16/2021 5:10 PM  
I appreciate the feedback.

For me, if you were confiding in an attorney for a criminal case or a divorce case, I completely understand the need to client attorney privilege.

In my building's case, I just don't see the need. It's leading to rumors, assumptions and exaggerations.

I think it would be better for the board to present everything to the community so everyone knew exactly what our position is.

thanks.

NpS
(Pennsylvania)

Posts:4041


02/16/2021 7:23 PM  
Attorney-client privilege exists no matter what type of case it is.

As far as what information or documents are privileged, it would apply to all communications between your Board and your HOA attorneys.

If a lawsuit has been filed, then those filings are public documents, and you can get copies of at the courthouse.

As far as rumors, assumptions and exaggerations are concerned, that's not going away no matter what you do.

Best of luck.

Sikubali jukumu. Read all posts at your own risk.
SheilaJ1
(South Carolina)

Posts:220


02/17/2021 6:58 AM  
I believe attorney client privilege should not exist if 3rd parties were included on the documents, so if the community manager was included, then they have waived attorney client privilege and must disclose the documents.

The attorney has two roles. advisor to the board and employee/management advisor when communicating with management or vendors. Only advice to the board should be attorney client is privileged. But I’m sure they’ll hide behind it even with 3rd party communication.



AugustinD


Posts:0


02/17/2021 7:17 AM  
Posted By SheilaJ1 on 02/17/2021 6:58 AM
I believe attorney client privilege should not exist if 3rd parties were included on the documents, so if the community manager was included, then they have waived attorney client privilege and must disclose the documents.
A HOA/condo manager is an agent of the HOA/condo, and so is not a third party. That is, when corporation X sues HOA corporation B, and HOA corporation B's manager speaks with HOA corporation B's attorney, then the communication is attorney-client privileged.
SheilaJ1
(South Carolina)

Posts:220


02/17/2021 7:27 AM  
Posted By AugustinD on 02/17/2021 7:17 AM
Posted By SheilaJ1 on 02/17/2021 6:58 AM
I believe attorney client privilege should not exist if 3rd parties were included on the documents, so if the community manager was included, then they have waived attorney client privilege and must disclose the documents.
A HOA/condo manager is an agent of the HOA/condo, and so is not a third party. That is, when corporation X sues HOA corporation B, and HOA corporation B's manager speaks with HOA corporation B's attorney, then the communication is attorney-client privileged.



They can claim that but from experience, it’s not. This is why the HOA attorney should not Cc management on their communication.
AugustinD


Posts:0


02/17/2021 7:28 AM  
Posted By SheilaJ1 on 02/17/2021 7:27 AM
They can claim that but from experience, it’s not. This is why the HOA attorney should not Cc management on their communication.
From experience, such a communication would be attorney-client privileged.

You and I disagree.
SheilaJ1
(South Carolina)

Posts:220


02/17/2021 7:34 AM  
Disagree but the information can be obtained, just ask for communication between management and the board.
CathyA3
(Ohio)

Posts:1612


02/17/2021 8:09 AM  
Would the attorney's secretary/clerk/person who prepares legal documents but is otherwise not involved in the lawsuit be considered a third party?
AugustinD


Posts:0


02/17/2021 8:25 AM  
I think the following is a good example from 2019-ish of how courts think about attorney-client privilege with regard to agents of the attorney's client: https://www.butlersnow.com/2019/06/youre-not-my-client-but-the-attorney-client-privilege-still-applies/

I believe the work-product doctrine also is quite relevant.
SheilaJ1
(South Carolina)

Posts:220


02/17/2021 8:39 AM  
And your point is? You still have to ask for the documents because they can introduce it in court and most times you're going to be unprepared.

For example, the attorney may have advised the board to take a certain action, the board will claim attorney client privilege but if they're getting sued for breach of duty, they'll come to court and say look, we we're advised by the attorney to take this action, here's the document, sorry plaintiff, we waived privilege on this document just last night, so now at the last minute we'll introduce it, your case for breach of duty based on the business judgement rule has weakened substantially.

So you should still ask for documents and let them defend their "privilege" claim in court.

Overall,

As for Cathy's question:
Probably, they will claim "attorney work product"

However, they can claim whatever they want, doesn't hurt to ask and it doesn't mean the court will view it that way, just have to ask for exactly the right things. Like don't say you want the secretary's and attorney communication documents, say you want the secretary and all members of the HOA communication. Most times the attorney is "BCC" or blind carbon copied, so how can they claim privilege if no one knows who is receiving that communication. This is why you ask for outgoing and incoming communication.

No need to mention attorney or lawsuit or anything related. You're simply asking for documents. This is why attorney's do things by phone, no way to trace it.


As for Bob's question, best thing is, get on the board, then you can see the documents.
AugustinD


Posts:0


02/17/2021 8:55 AM  
Posted By SheilaJ1 on 02/17/2021 8:39 AM
And your point is? You still have to ask for the documents because they can introduce it in court and most times you're going to be unprepared.

For example, the attorney may have advised the board to take a certain action, the board will claim attorney client privilege but if they're getting sued for breach of duty, they'll come to court and say look, we we're advised by the attorney to take this action, here's the document, sorry plaintiff, we waived privilege on this document just last night, so now at the last minute we'll introduce it, your case for breach of duty based on the business judgement rule has weakened substantially.
I think no competent HOA attorney would proceed as described above.

I believe plaintiffs that claim a board violated the business judgement rule rarely prevail.

As far as I am concerned, if the OP wants to try to bring suit to get the Board to produce its attorney's communications with the other side's attorney, have at it. It's not going to happen. If the OP wants to try to win a lawsuit against the Board, demanding the Board provide communications between, say, the Board and the HOA manager on the subject of the lawsuit, have at it. I believe such a lawsuit would be a stupendous waste of time and money, even if the OP won (after many months and north of $15,000).
AugustinD


Posts:0


02/17/2021 9:02 AM  
Posted By AugustinD on 02/17/2021 8:55 AM
As far as I am concerned, if the OP wants to try to bring suit to get the Board to produce its attorney's communications with the other side's attorney, have at it. It's not going to happen.
Strike the above. These communications, from one side to the other, obviously are not attorney-client privileged or work product privileged. I suppose the OP could be successful in pursuing these communications, if Georgia law and/or the OP's HOA/condo counts such communications as records that the HOA/condo must provide when Owners request such a record.
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