The ability of Boards and Board Members to obtain legal advice from their attorneys and keep the communications confidential so that no one else can use the communication against them is essential Board Management. Imagine an email from counsel advising that “your adversary is correct and has reasonable damages of over $250,000 because of XY&Z.” It is up to the attorney to make sure the client Board Members know what they can and cannot do when it comes to preserving the privilege in that communication and it is up to the Board Members to follow that advice and keep it privileged. Otherwise your adversary can discovery, read and use the counsel’s email against you which would be devastating.
There are so many examples of situations where there is likely no expectation of privacy in the communication and thus no privilege. If counsel is communicating with the Board Members and a person like the manager is sitting in the room, there could be no expectation of privacy and privilege because of the manager’s presence. If the attorney is using that manager as a liaison with the Board (which happens frequently), there could be no expectation of privacy and privilege. Think about all those meetings when the manager is in the meeting room when the attorney is giving legal advice to the Board or included on an email from the attorney to the Board Members. It is critical to keep such communications privileged even if it means excluding the manager from the communication.
This dilemma is happening right now in Florida. In the case of Las Olas River House Condominium Association Inc. vs. Lorh, LLC, 2015 WL 8347977 (4th DCA 2015) a Florida condominium association’s attorney-client privilege is being challenged and has been subject of protracted and expensive litigation. The attorney there was communicating with the Board Members through the property manager liaison and the fight is over privilege waiver because the property manager was included in the communication. The Florida Appeals Court devised a complicated 5-prong test to analyze the situation which is a real problem for Boards who rely on their property manager but risk waiving the privilege if they include him in communications with counsel. The safer bet seems to be to exclude the property manager but that’s up to the Board Members and community association attorneys who bear the risk.
Whether or not Board Members and their attorneys can figure out how to keep the property manager in the meeting room or on the email communications, they have another problem in making sure that communications are protected by privilege. This comes down to expectations of privacy in the communication.
For example, if there is an outsider who can hear or read the communication between the attorney and client Board Members, there is no expectation of privacy and privilege. If the attorney emails the Board Members and one, just one, Board Member is using his work email account and his employer has access to those emails (most cases) or just one Board Member is using a free email account where the provider has access to the email (most providers terms and conditions now say not to expect privacy in using our free email), there is no expectation of privacy and no privilege.
This is a huge risk for Board Members who have legal obligations to protect their organizations and should want to protect themselves as well. It is also a huge dilemma for attorneys who also are placed in a very precarious position. Attorneys have both legal and ethical obligations to preserve the privilege in their client communications. By communicating with Board Members at any of their work or free email addresses, the attorney may be breaching both their legal and ethical obligations. That means getting sued for legal malpractice by their client and grieved by the bar association.
The American Bar Association requires that:
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client. American Bar Association Formal Opinion 11-459
Office of the Board takes the privilege waiver risk off of the table. Because each Office of the Board provides separate email accounts for The Board (for general Board communications) and for individual Board Members which are all contained in a patent pending Risk Intelligent Framework, Board Members and attorneys are no longer at risk of a privilege waiver. There is finally a reasonable alternative to ignoring this significant privilege risk. As soon as the Board instantaneously create their Office of the Board, they can email confidentially with each other and with their counsel by Board Email, protected by Office of the Board.