Associations Not Required to Disclose Privileged Information

The Maryland Court of Special Appeals held that the Maryland Condominium Act did not require disclosure of information related to legal advice or attorney work product (privileged information) to owners. Although this case was decided in Maryland, and it is not binding in Washington, it could indicate how Washington courts would decide a similar issue (and, indeed, we have achieved similar outcomes in cases handled by our firm).

The case, 100 Harborview Drive Condominium Council of Unit Owners v. Clark, involves an owner who purchased a condominium unit that had a roof leak. Clark believed that the association was responsible for the leak and the resulting mold and contamination, so he filed multiple complaints against the association and later filed three lawsuits.

This case resulted from Clark’s request to inspect and copy legal bills and written legal advice received by the association. The association refused to produce these documents, because it felt that the information should be protected under the rules of attorney-client privilege and attorney work product doctrine. Clark sued seeking to have the court force the association to provide the documents.

The trial court found that even though the Condominium Act gave an owner the right to inspect written legal advice when the owner, his family, or his unit was the subject of the information, the act did not invalidate the laws protecting attorney-client privilege and attorney work product. The act could not require the association to provide documents that were privileged. The court determined that the association was not required to produce the written legal advice but was required to produce the legal bills with supporting documentation, because it had not proven that the bills contained privileged information. The trial court also decided that Clark should have access to future emails concerning the same kinds of records the association was required to disclose. Both parties appealed.

The appeals court mostly agreed with the trial court but reversed the ruling giving future email access, because it was excessive. The court indicated that the types of information that could be privileged and properly withheld would be correspondence, bills, ledgers, statements, and time records that revealed specifics of the legal representation, such as strategy and client motivation.

We have been to court over this same issue, and the trial court judge ruled that no attorney-client privileged communications need to be provided to an owner suing the association (the same result as this case).

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2 Responses to Associations Not Required to Disclose Privileged Information
  1. Michael O'Leary
    April 7, 2017 | 3:48 pm

    We recently had an homeowners annual meeting with a vote to remove two board members. The vote tally added up to exactly the number of units in the complex, even though there were homeowners who were not present and did not submit a proxy. So I have asked to inspect the attendance records for the meeting including those who signed in and those who were present via proxy. The board has refused to allow me to inspect those records claiming it would violate the privacy of secret ballots. I’m not asking to see the ballots, just the record of those who attended in-person or by proxy. Does the board have the right to refuse inspection of such documents?

  2. Valerie Farris Oman
    September 6, 2017 | 7:10 pm

    Michael, I’m sorry for the delayed response! I can’t answer your question without knowing more, and giving you a specific answer would probably be giving legal advice, which I cannot do since you are not a client. I can tell you that if you clarify your request and make it clear that you are not asking for the ballots themselves, but the tally of the votes/proxies by number (rather than by person, which could jeopardize the confidentiality of the balloting system) and the board still refuses to allow inspection of the records, you can find an attorney to assist you here: https://wscai.org/resources/service-provider-directory/listing-category/attorneys/.

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Associations Not Required to Disclose Privileged Information

The Maryland Court of Special Appeals held that the Maryland Condominium Act did not require disclosure of information related to legal advice or attorney work product (privileged information) to owners. Although this case was decided in Maryland, and it is not binding in Washington, it could indicate how Washington courts would decide a similar issue (and, indeed, we have achieved similar outcomes in cases handled by our firm).

The case, 100 Harborview Drive Condominium Council of Unit Owners v. Clark, involves an owner who purchased a condominium unit that had a roof leak. Clark believed that the association was responsible for the leak and the resulting mold and contamination, so he filed multiple complaints against the association and later filed three lawsuits.

This case resulted from Clark’s request to inspect and copy legal bills and written legal advice received by the association. The association refused to produce these documents, because it felt that the information should be protected under the rules of attorney-client privilege and attorney work product doctrine. Clark sued seeking to have the court force the association to provide the documents.

The trial court found that even though the Condominium Act gave an owner the right to inspect written legal advice when the owner, his family, or his unit was the subject of the information, the act did not invalidate the laws protecting attorney-client privilege and attorney work product. The act could not require the association to provide documents that were privileged. The court determined that the association was not required to produce the written legal advice but was required to produce the legal bills with supporting documentation, because it had not proven that the bills contained privileged information. The trial court also decided that Clark should have access to future emails concerning the same kinds of records the association was required to disclose. Both parties appealed.

The appeals court mostly agreed with the trial court but reversed the ruling giving future email access, because it was excessive. The court indicated that the types of information that could be privileged and properly withheld would be correspondence, bills, ledgers, statements, and time records that revealed specifics of the legal representation, such as strategy and client motivation.

We have been to court over this same issue, and the trial court judge ruled that no attorney-client privileged communications need to be provided to an owner suing the association (the same result as this case).

Share and Enjoy:
  • Print
  • Digg
  • StumbleUpon
  • del.icio.us
  • Facebook
  • Yahoo! Buzz
  • Twitter
  • Google Bookmarks
2 Responses to Associations Not Required to Disclose Privileged Information
  1. Michael O'Leary
    April 7, 2017 | 3:48 pm

    We recently had an homeowners annual meeting with a vote to remove two board members. The vote tally added up to exactly the number of units in the complex, even though there were homeowners who were not present and did not submit a proxy. So I have asked to inspect the attendance records for the meeting including those who signed in and those who were present via proxy. The board has refused to allow me to inspect those records claiming it would violate the privacy of secret ballots. I’m not asking to see the ballots, just the record of those who attended in-person or by proxy. Does the board have the right to refuse inspection of such documents?

  2. Valerie Farris Oman
    September 6, 2017 | 7:10 pm

    Michael, I’m sorry for the delayed response! I can’t answer your question without knowing more, and giving you a specific answer would probably be giving legal advice, which I cannot do since you are not a client. I can tell you that if you clarify your request and make it clear that you are not asking for the ballots themselves, but the tally of the votes/proxies by number (rather than by person, which could jeopardize the confidentiality of the balloting system) and the board still refuses to allow inspection of the records, you can find an attorney to assist you here: https://wscai.org/resources/service-provider-directory/listing-category/attorneys/.

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