Academy/Working With Professionals
Attorney-client privilege
The privilege belongs to the association, not to you personally, and it can disappear the moment the wrong person hears it.
Attorney-client privilege protects confidential communications between the association and its attorney, made to get legal advice, from being forced into disclosure. The client is the association as a whole, not any one director or owner. That protection can vanish the moment those communications reach someone outside the board's circle, including a homeowner.
Who actually holds the privilege
The privilege is not the board president's, and it is not any individual director's. It belongs to the association as an entity. Practitioner guidance describes the relationship this way for one state's nonprofit corporation law:
"The attorney-client relationship in a North Carolina nonprofit corporation, such as a property owners association, exists between the attorney and the collective members of the board of directors."
Source: The Attorney Client Privilege in Community Associations, Ward and Smith, P.A.
That collective circle can extend to officers, employees, and agents of the association, including the property manager, depending on the circumstances. It does not extend to an individual owner just because they sit on a committee or ask a pointed question at a meeting.
How the privilege gets waived
Privilege is fragile. It is destroyed the moment a confidential communication reaches someone who is not part of that inner circle, even if the disclosure was well meant.
"The privilege is destroyed if a third party, who is not an agent of the association, is present when the communication is made, or if a communication made in confidence is subsequently shared with such a third party."
Source: The Attorney Client Privilege in Community Associations, Ward and Smith, P.A.
The same source is explicit that a member of the association counts as that outside third party: "the communication to a third party that destroys the privilege can indeed be a communication to a member of the association." Forwarding counsel's memo to a homeowner who asked for transparency, or reading it aloud with a non-board owner in the room, does not make the board more open. It can make the legal advice permanently discoverable.
"Our attorney is on the call" isn't its own justification
Boards often close a meeting to executive session the moment counsel joins, treating the attorney's presence as automatic cover. At least one state's list of permitted executive session topics suggests that reasoning goes further than the statute actually supports.
"litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member"
Source: Cal. Civ. Code Section 4935, California Legislative Information
That list does not name "consulting with legal counsel" as a category on its own. What closes the meeting is the subject, litigation, a contract, discipline, not the fact that an attorney happens to be present. Which topics justify closing a meeting varies by state, so check your own state's open-meeting statute before assuming the attorney's presence alone is enough.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
During a regular board meeting, counsel discusses ongoing litigation while a homeowner who is not a board member sits in the room. What happens to the privilege?
A board president forwards counsel's confidential litigation memo to a homeowner who asked to see it, wanting to seem transparent. What is the risk?
A board closes a meeting to executive session solely because its attorney is joining the call, with no other stated reason. Under California's list of permitted topics, is that enough?
Sources
- The Attorney Client Privilege in Community Associations, Ward and Smith, P.A.
- Cal. Civ. Code Section 4935, executive session topics, California Legislative Information
Working With Professionals
Not sure when you actually need a lawyer on the phone at all? See When to hire HOA counsel.
Whether your state has an HOA-specific privilege statute, who counts as inside the board's circle (property manager, committee members), and what justifies closing a meeting to discuss legal matters all vary by state and by your governing documents.