An association member wants to review the association’s lawyer’s bills sent to the association over the past year. As a result, the member submits a written request to access those records. But, is the member actually entitled to see them? Pursuant to the relevant sections of Chapter 718, Chapter 719, and Chapter 720 of the Florida Statutes, regarding condominiums, cooperatives, and homeowners’ associations, respectively, all members (or their authorized representatives) have the right to access their community association’s official records for inspection and copying. However, this right is not absolute as there are several official records which are exempt from member access.
Among these exempted official records are records protected by the attorney-client privilege, as described in section 90.502, Florida Statutes, and any record protected by the work-product privilege. Generally, the attorney-client privilege protects communications between a lawyer and the lawyer’s client; whereas, the work-product privilege protects, for example, a record prepared by an association attorney or prepared at the attorney’s express direction which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings or which was prepared in anticipation of litigation or proceedings until the conclusion of the litigation or proceedings.
While these exceptions to official records access are expressly provided in the relevant sections of the Florida Statutes, questions arise as to whether or not a community association’s legal invoices are protected by the attorney-client privilege and/or the work-product privilege. Moreover, can the association redact its legal invoices to keep privileged information provided in the legal invoices from access by the member? You bet the association can!
This issue was decided in the arbitration case of Jandebeur v. Marine Terrace Association, Inc. (Arbo. Case No. 2014-03-5716) in which the association, in the end, was represented by Kaye Bender Rembaum, Attorneys at Law. (This case involved a cooperative under Chapter 719, Florida Statutes, which is substantially the same as Chapter 718, Florida Statutes. Arbitration is not applicable to Chapter 720, Florida Statutes.) The law firm took the case over from the association’s prior counsel who, on behalf of his client-association, advised the board not to provide access to his law firm’s billing to the association, claiming the entire bill to be privileged.
In this case, the member made written requests to inspect the association’s official records, including legal invoices from the association’s prior law firm. Upon the advice of the association’s prior attorney, the association refused to provide the owner with access to the requested legal invoices claiming that they were inaccessible, in their entirety, because they contained attorney-client privileged communications and attorney work-product.
In deciding the matter in favor of the member, the arbitrator held that refusing access to the entire legal invoices was improper; however, the arbitrator made it patently clear that “[i]f attorney work product is contained in an invoice, e.g. a description of work performed reveals the attorney’s thoughts, etc., regarding the litigation, that information may be redacted.” Therefore, the arbitrator in this case clearly and expressly opined that portions of legal invoices may be redacted to remove information protected by the attorney-client privilege and/or the work-product privilege.
Given the official records exemptions from member access as discussed above, the arbitrator’s decision in this case is in line with the statutory exemptions provided by the relevant sections of Chapter 718, Chapter 719, and Chapter 720 of the Florida Statutes. Therefore, do not be surprised if, upon a member’s written request to inspect the association’s law firm’s billing, invoices are presented only after significant redaction to protect both attorney-client and work-product privileges.
While arbitration cases decided by the Arbitration Section of Florida’s Department of Business and Professional Regulations, Division of Florida Condominiums, Timeshares, and Mobile Homes, do not create binding precedents on any other parties (meaning, the same issue could be decided differently in another case) and are not applicable to homeowners’ associations, they are often relied upon for guidance, as many community association attorneys do. Therefore, when presented with a written request for access to your association’s legal invoices, you may want to have your association’s attorney review the requested invoices to see if there is any privileged information which should be redacted to protect the privilege prior to the member’s inspection and copying of the official records.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.