From time to time, someone will forward me a community association question based on something they read in an online forum. Far too often, people posting to these forums start a post with something like this: “Our association’s attorney said we should….”
I instinctively shake my head.
First, sharing attorney-client communications with an online forum is a problem. The attorney’s advice is to the board as a whole, acting on behalf of the association, and the decision to share attorney-client communications and potentially waive the attorney-client privilege must be made by the board, not an individual director. Further, if an association is going to waive the attorney-client privilege it should be for a much better reason than to share on online forum discussion.
Second, I am certain that people posting to these sites do not always accurately communicate the legal advice they received. More importantly, if an online poster accurately recites a legal opinion they received that guidance cannot be relied on by other associations. Legal advice given to one association cannot be relied on by another association. Legal opinions are typically based on facts specific to the situation, statutes that may or may not apply and governing documents that certainly do not apply to other associations.
I‘m not suggesting that the internet is void of good and important resources for board members. Board members should not, however, share attorney-client privileged communications with others (via an online forum or otherwise) and should not rely on second-hand legal advice shared by third parties (online or otherwise). If you see something online and it spurs a question, that’s a good thing. Take that question to your association’s counsel for guidance that you can rely on. Don’t assume that internet advice to one association applies to your particular situation.