Recently, a unit owner in a condominium association that our firm represents wanted to attend a board meeting scheduled with us to discuss our defense of a pending lawsuit. We explained to the association board our view that the unit owner should not be present for fear that the conversation would not fall within the lawyer client privilege. The owner logically and clearly stated that since all unit owners are members of the association and pay the legal bill, all unit owners are the client and the communication should remain privileged. Unfortunately, the law does not support such a broad view of the privilege.
The purpose of the lawyer client privilege is to encourage clients to disclose everything to their lawyers so that the lawyer can fully understand the matter at hand. If the communication is not protected, clients may withhold what they view to be damaging information for fear that it will negatively impact the case. When the client is an artificial entity such as a corporation, limited liability company of condominium association, which communications are protected?
According to court rules, the privilege extends to representatives of the client “having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.” Thus, in our condominium association example, since only the officers and directors of the association can contract for any service on behalf of the association, the privilege does not extend beyond that group. With a non board member present, there is no privilege. In the corporate setting, the privilege applies to communications with the officers, directors and upper level management. Unfortunately, the rule becomes less clear as we proceed further down the chain of command.