What is confidentiality? The Ohio Rules of Professional Conduct state that confidentiality requires that attorneys not reveal information regarding the representation of a client unless the disclosure is impliedly authorized, or the client permits the disclosure.
The primary issue: Who is our client? Our client is the Association, as the corporate entity. We often receive emails/phone calls from board members asking that we keep the information he/she is revealing to us confidential from other board members. The problem is that we do not represent you as an individual board member. We represent the Association. Accordingly, anything revealed to our attorneys/staff will be held as confidential to the rest of the world, and will be subject to attorney/client privilege, but cannot be kept in secret from the rest of the Board.
It is also important that any confidential communications be kept between the Board, the Association’s attorneys and it’s property manager (if any). For example, once information is discussed at executive session, it should not be discussed with anyone else beyond the group of people just mentioned. A property manager falls within the exception because he/she is an agent of the Association.
Once the information leaves the sanctity of this group, it is no longer subject to attorney-client privilege. It may be as simple as discussing an Association issue with a spouse who is a non-board member to constitute a waiver of attorney-client privilege. But what exactly is the consequence of waiving the privilege? If it is waived, an opposing party on that matter may inquire of the Board as to the details of the matter which was waived. For example, the Board allows a non-board member to sit in on an executive session, during which the Board discussed several payment plan approvals and rejections with its attorney. During a later foreclosure case, it is revealed during a deposition that a non-board member was present at executive session where the owner’s payment plan was rejected. ALL of the information relating to that particular session is now no longer subject to attorney-client privilege, and must now be revealed. This information may be used as leverage against the Association in litigation.
In short: keep confidential information between the Board, the attorneys and your property manager.