By Michael J. Gelfand, Esq. / Published March 2016
Many people “know” from watching Perry Mason that communications with your attorney are confidential because they are protected by the “attorney-client privilege.” However, what happens when someone other than your association directors receives a copy of a confidential letter from your association attorney, or attends a meeting with the attorney? Can a property manager attend the meeting or read the letter? Does the document or meeting information lose its confidentiality? Maybe so.
Providing much needed guidance, a Florida appellate court recently set forth the test for determining whether an association’s communications retain their attorney-client privileged status. In Las Olas River House Condominium Association, Inc. v. LORH, LLC, 40 Fla. L. Weekly D 2714 (Fla. 4th DCA, December 9, 2015), the facts indicated that after years of threatening to sue the association, Levy, the authorized representative of the corporate owner of two commercial units and its corporate lessee, did in fact sue the association. As a part of the lawsuit, Levy sought all association communications mentioning the corporate owner and lessee with the association’s attorney for the past five years concerning Levy’s threats to sue.
The association refused to produce the documents, asserting that the attorney-client privilege applied. Nonetheless, the trial court found that the association waived the privilege because the documents were received by or copied to the association’s manager and his supervisor.
Although the association argued that the manager and his supervisor were agents of the association whose duties included communicating with the association’s counsel on the association’s behalf, the trial court determined that the manager and his supervisor were not “employees” of the association, found that the privilege was waived, and ordered the association to produce the documents.
Thankfully for most associations, the Florida appellate court quashed the order compelling the association to produce documents, which the association claimed were protected by the attorney-client privilege and sent the case back to the trial court to conduct an in camera inspection of the documents. An in camera inspection means that the judge examines each document privately to determine if the document should remain confidential.
The appellate court provided a five point test for determining whether a corporation’s communications are attorney-client privileged as follows:
(1) The communication would not have been made but for the contemplation of legal services.
(2) The employee making the communication did so at the direction of his or her corporate superior.
(3) The superior made the request of the employee as part of the corporation’s effort to secure legal advice or services.
(4) The content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties.
(5) The communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
Importantly, not all attorney communications are privileged.
Despite what you may hear on television or the movies, the attorney-client privilege is not automatic. In order to keep communications with your association’s attorney confidential, confirm that these communications are only sent to people in the corporate structure who need to know of their contents. Do not “cc” everyone in your mailbox! Confer with association counsel to help ensure you follow the five point test to keep confidences confidential.
When does an owner cross the line from free speech to harassment or stalking? This is becoming a greater problem in the Internet age. We now have to ask: Is following someone in a car acceptable? Can you draw a line in front of your home? Even for mail?
In Thoma v. O’Neal, 40 Fla. L. Weekly D 2721 (Fla. 4th DCA, December 9, 2015), the victim, an employee of an abortion clinic, sought an injunction for protection against stalking by an abortion protester. The victim testified that the protestor followed her in his car after she left work and mailed a flyer with her picture, name, and address to her home. The trial court determined that a course of conduct constituting harassment as stalking was established and granted the injunction.
The Florida appellate court agreed with the trial court’s finding that the victim proved a course of conduct which constituted stalking. The court explained that a “person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking.”
The court rejected the abortion protestor’s argument that the flyer was protected free speech. The Florida Supreme Court and the United States Supreme Court recognized there is no First Amendment protection for speech that “intrudes on the privacy of one’s home.”
There are thresholds to be met; a vague fear or feeling of discomfort is not enough. To constitute stalking, there must be a course of conduct which causes “substantial emotional distress.”
In other words, actions may constitute stalking when they cross the line at your home. However, the victim must establish there were at least two incidents which caused him or her some measure of fear.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & ARPE, P.A.
Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at email@example.com or (561) 655-6224.