Attorney-client privilege doesn’t extend to property manager
Question: I am a recently elected association board director. The other directors have told me that our property manager is the “authority” and “go to” person for everything and she’s the “go between contact” with our association attorney and his firm. Individual directors must go through the manager with legal questions. The manager contacts the attorney, or his firm, and discusses board concerns. She is not a licensed attorney but often interrupts meetings to impart her “legal knowledge,” and directors rely on her words. During board meetings she begins answers with “the attorney says we should,” repeating what the attorney allegedly told her. Shouldn’t directors be discussing these items directly with the association attorney, whom we pay, and not through an employee of a management company contracted with our association?
Answer: If the association hired the attorney, that makes the association the client, not the property manager. The attorney-client privilege is only between the association and its attorney. If the property manager is designated as the “go to person” for contact, nothing the association discloses to the attorney remains confidential; it has been disclosed to a third party. All discussions, documents, papers and advice given by the attorney to the manager for relay are open for others to see, including those who might sue the association. None of it is protected by the attorney-client privilege.
The privilege of confidentiality applies to all discussions between an attorney and client. Business and Professions Code Section 6068(e)(1) states that the attorney is to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” If an attorney breaches that duty he or she could be subject to discipline by the California State Bar and a malpractice lawsuit.
If the manager is asked to discuss board strategies, litigation, business matters, consequences of management actions or anything else that might be confidential with the attorney, then none of the discussions are privileged. Any information relayed by the manager as coming from the attorney is also no longer protected by the privilege of confidentiality. Attorneys advising boards in situations like this are well aware their conduct is a breach of confidentiality and destroys privileges that would otherwise attach to their advice.
Not only does the association lose the protections for its “conversations” with the attorney through the property manager, but it is spending association assets for advice that is not being given to it directly but to a third party. Information passed along by the manager could be misinterpreted, exposing the association to liability. All those communications are subject to discovery by the opposing party in a lawsuit.
On a related note, California lawyers are not required to carry professional liability insurance, and must inform their clients of this at the time a retainer agreement is entered into. Boards have a duty to inquire about this before hiring an attorney or firm.
Glassman is an attorney specializing in corporate and business law. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or email noexit@mindspring.com.
