|Ayars & Associates, LLC--Patricia Ayars||
The Florida Appellate Court has established a test to determine whether communications between the Association attorney and a management company are subject to the condominium Association's attorney-client privilege.
The case is Las Olas River House Condominium Association Inc. vs. Lorh, LLC, 2015 WL 8347977 (4th DCA 2015). In this case, the adverse party sought discovery of communications between the Association and unit owners. The communications were received by and copied to the Association's manager and the manager's supervisor. The adverse party insisted the fact that these communications were received by the management company was a waiver of the attorney-client privilege that protects communications from discovery The trial court held that the communications were not privileged because the client was the condominium Association and receipt by the management company, a non-client person, was a waiver of the attorney-client privilege.
The Appellate Court overturned the decision and found that the communications were still subject to the attorney-client privilege. The Court applied the five prong test set forth in Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377 (Fla.1994), in which the issue was communications to employees within a corporation.
The Deason five-part test for determining client-attorney privileged communications is:
1. whether the communication would not have been made but for the contemplation of legal services;
2. whether the employee making the communication did so at the direction of his or her corporate superior;
3, whether the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
4. whether 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; and
5. whether the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
Under the Deason case, it is clear that the Association attorney must take certain actions to protect privileged communications that are received by the management company.
First, communications from the attorney should only go to persons who are directly involved in the management of the condominium and the specific legal services being provided to the Association.
Second, the attorney should have clear written instructions from the Association as to the role of the manager in the legal affairs of the Association and that identifies persons in the management company who should receive the communications.