Attorney-Client Privilege: Are Attorney Communications Received by, or Copied to, an Association’s Manager Privileged?
A recent Florida appellate decision reminded us of the importance of understanding attorney-client privileges when communicating with community association clients through their manager. Under the evidence code, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
In the community association context, managers serve unique roles with associations serving as the primary point of contact between the board of directors and their attorney. When the manager is “cut out” to assure no challenge to the attorney-client privilege it makes dealing with the board more difficult. Although some communities have strong board leadership, in most others the manager’s involvement is essential in most every decision.
In the case of Las Olas River House Condominium Association Inc. vs. Lorh, LLC, 2015 WL 8347977 (4th DCA 2015) the condominium association’s attorney-client privilege came under fire. The corporate owners of two units in Las Olas River House condominium (plaintiffs) brought a suit after years of contention between them and the condominium association, during which they repeatedly threatened to sue the association and its directors and agents. In the course of discovery, plaintiffs propounded requests for production of communications between the association and its attorney that mentioned the plaintiffs. The association objected asserting the attorney-client privilege. On its face, this seemed like an obvious case of privileged documents. However, because the communications were received by, and copied to, the association’s manager and his supervisor, the plaintiffs argued the attorney-client privilege was waived.
The condominium countered arguing the scope of a community association aligns it more with a corporation than an individual and a community association manager’s contractual duties require them to communicate with an association’s legal counsel on their behalf. They further explained the manager’s role in keeping the association’s counsel informed of day-to-day events that may lead to their need for legal services. Without the manager the board of directors would have no point of contact with their legal counsel.
The trial court disagreed and rejected the privilege reasoning the manager and supervisor were not “employees” of the association within the meaning Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377 (Fla.1994). The condominium appealed the decision.
The appellate court reversed the trial court’s ruling and sent the case back to the trial court to analyze, using the 5 prong Deason test, the extent of the condominium’s privilege in the corporate context.
The Deason court set forth a five-part test for determining whether a corporation’s communications are client-attorney privileged:
1. whether the communication would not have been made but for the contemplation of legal services;
2. whether the employee making the communication did so at the direction of his or her corporate superior;
3, whether the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
4. whether the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties; and
5. whether the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
A ruling by the trial court applying the Deason test has not yet been issued, but when you read each prong of the Deason test, one can anticipate many situations involving privileged communications with management companies where a court could find the privilege waived. For example:
1. communications with persons other than the CAM (his/her secretary, other employees of the management company, management of the management company, etc.); and
2. failure to have a clear written agreement as to the role of the manager in the legal affairs of the association.
This is an issue associations, managers, and their legal counsel should consider carefully to establish appropriate procedures and policies to ensure the preservation of critical lines of communication and protect privileged communications with legal counsel. At a minimum, community associations and management companies should consider amending their management agreement to specifically address the manager’s role in the receipt and transmission of confidential communications and communication with counsel, including a provision that such communications will not be shared within the management company without the association’s prior consent.
If you have questions about this case, or issues surrounding the client-attorney privilege, you should immediately consult with your association’s legal counsel.