Few legal principles compete with the nuances surrounding the right of the attorney-client in group association matters. Confusion regarding these nuances and the resulting misunderstandings do not differentiate between lawyers, board executives, members and managers alike. This article will shed some light on this complex subject in the hope that those associated with group groups will have a better understanding of the essence of the privilege.
The right of the Solicitor-Client covers such correspondence between the Attorney and the client of the Attorney from disclosure to others. The right of the attorney-client is vital to our legal system because it enables lawyers and their clients to engage in candid contact, either oral or written, on the merits and strategy of the matter, without fear that the opposing party will discover or use the content of the communication. In addition, in the form of neighborhood organizations, the right enables the board members to participate in candid discussions with the organization’s counsel free of pressure from the membership of the association.
The basic legal test of whether a contact is privileged is the study of whether:
– The relationship between the lawyer and the client remains at the time of the communication;
– The correspondence shall be made with the understanding that it will be kept in confidence;
– The contact involves a topic about which the lawyer is professionally consulted;
– The contact shall be made in the process of offering or obtaining legal advice;
– The client either has or has not waived the right.
Although contact between the lawyer and the client, as a default, is typically assumed to be privileged (although the person arguing that communication is privileged bears the burden of demonstrating the existence of the privilege), security can be waived. As a result, this important right should be the primary emphasis of the Board’s policy on attorney-client communications.
In order to understand how the right of a lawyer-client works in the sense of a community association, it is important to understand the existence, role and function of a community association.
A common misconception is that a neighborhood organization is simply a broad group of its members, like an informal club. This is a misunderstanding since a neighborhood organization is a corporation that is legally distinct from and should not be confused with membership as a whole. In fact, in almost all cases under the North Carolina Act, a neighborhood association must be organized as a non-profit organization.
As a corporation, a neighborhood association has a board of directors that makes business decisions on the management of the association, rather than a referendum vote of the members. In addition, the association’s contractors, such as landscapers, roof repairers, management firms, accountants and lawyers, all the work of the neighborhood association and not the members together.
A company, which is a legal fiction, must operate through its board of directors. As a general rule, therefore, there is a attorney-client relationship in a non-profit organization, such as an association of land owners, between the attorney and the board of directors. However, under some cases, the right can be extended to corporate officials, staff and agents, including property managers.
The right of the attorney-client shall be based on the fair presumption of privacy of the client with respect to both the issue and the contact. However, restraint must be exercised in order to maintain the right. As noted earlier, the right can be waived.
For example, a right may be destroyed if a third party, who is not an agent of the organization, is present when the contact is made, or if the communication made in confidence is subsequently shared with that third party. It is necessary for the members of the Board to know that a communication to a third party that destroys the right can indeed be a communication to a member of the Association.
Even if the third party is an employee of the association, depending on the essence of the relationship between the parties and the position of the agent in relation to the problem and contact, the right may be waived, making this an even more complicated examination. The association’s counsel should be consulted on the arrangement and best practices of interactions concerning the association’s agents.
The right of the attorney-client is a matter that already absorbs a variety of legal treaties. Yet the scope of the problem calls for and justifies regular attention, sound policy and practice, and frequent reminders. Properly used and secured, the right of the attorney-client is a liberating instrument that facilitates the efficient and impartial management of the association of property owners. However, poor planning or lack of respect for the convolution of its safeguards can fully negate the protections and generate situations that require more backfire than improvement.