The attorney-client privilege generally safeguards certain confidential communications between an attorney and their client from production or disclosure to other parties. The privilege is well established and publicized, as it is codified in the Model Rules of Professional Conduct for attorneys, recognized by South Carolina law, and familiar even to those who do not often work with attorneys.[1] While the concept of attorney-client privilege may seem simple, there are many nuances and exceptions. The misunderstanding of these nuances and exceptions can lead to accidental waivers of the privilege and/or communications the client would have preferred to keep quiet being subject to production. Attorney-client privilege can be particularly tricky for homeowners’ associations (HOAs), which naturally have numerous board members administering the association as well as members who have certain inspection rights. This article cannot and is not intended to be a comprehensive listing of the nuances of attorney-client privilege, but it does set forth some key things to be aware of to help preserve the attorney-client privilege should your HOA engage with legal counsel.
It is important to know that the HOA’s attorney is just that, the HOA’s attorney; they do not represent the members of the HOA, nor do they necessarily represent the board.
Rather, they represent the corporate entity that is the HOA. While the HOA’s attorney may not represent the board, it is the board that the HOA attorney will take direction from on behalf of the HOA. To protect the attorney-client privilege, the HOA board must be careful not to share privileged communications with non-board members, as sharing otherwise privileged information with a third party outside of the attorney-client relationship waives the attorney-client privilege as to the specific communication as well as all communications between the attorney and client on the same subject.[2] This means being careful not to share such communications with friends, confidants, vendors, or non-board members who just happen to be interested. HOA members generally have the right to inspect certain documents, whether through the South Carolina Nonprofit Corporation Act,[3] the South Carolina Homeowners Association Act[4], or the HOA’s governing documents. However, this does not entitle non-board members to attorney-client privileged material.
HOA boards may also be surprised to learn that not every single communication involving their attorney is protected by attorney-client privilege.
To be privileged, the communication must be of a confidential nature, relating to a fact of which the attorney was informed by his client, without the presence of third parties, for the purpose of securing either an opinion on law or legal services.[5] Therefore, if the communication is not for the purpose of procuring the legal opinion or service, or is irrelevant to the representation, it can be subject to production to the other party and used in a courtroom or other proceeding. Notably, simply copying the HOA’s attorney on an email does not in itself make the communication protected by attorney-client privilege. Of course, emails solely among board members are generally not confidential or privileged and therefore are subject to production obligations. While every effort should be made to preserve the attorney-client privilege, the various potential pitfalls illustrate the time-tested adage that in any event, it is best not to put something in writing that you would not want shown on a screen in a courtroom someday.
This article is not intended to be an exhaustive discussion of the attorney-client privilege, nor any guarantee regarding the outcome of litigation regarding the same. Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions you may have regarding the attorney-client privilege and best practices for HOA boards engaging with counsel. Please contact us at (803) 724–5000 for further information.
Written by Dean Hayes
McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C. and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.
[1] Rule 1.6, MRPC; Marshall v. Marshall, 282, S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
[2] Marshall, 282 S.C. at 538, 320 S.E.2d at 46-47.
[3] S.C. Code § 33-31-101 et seq.
[4] S.C. Code § 27-30-110 et seq.
[5] Marshall, 282 S.C. at 538, 320 S.E.2d at 47 (citing SEC v. Kingsley, 510 F.Supp. 561 (D.C.D.C. 1981); In Re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975)).