Published on: May 29, 2017
By Stephen Marcus
It is a sign of technology’s fast and firm grip that few of us can remember a time when we communicated by mail (letters inserted in envelopes, affixed with stamps and delivered by the post office) rather than e-mail, delivered instantly to one recipient or dozens of them by pressing the “send” button on a computer.
E-mail has become the communication standard, used to communicate just about everything to just about everyone. It is easy, efficient, expected – and fraught with potential risks that are almost universally unrecognized or ignored. For condo association board members, who use e-mail as much as anyone, there are four primary risks:
- Board members may violate open meeting laws by discussing association business in e-mail communications.
- E-mail communications could be subject to discovery in a law suit.
- Private e-mail messages could become public.
- Board members may inadvertently waive attorney-client privilege by sharing e-mail messages improperly.
Open Meeting Laws
State open meeting laws requiring governmental entities to conduct their business in public don’t apply to condo associations in all states. (Associations in New Hampshire are subject to the laws; associations in Massachusetts and Rhode Island are not.) But if state law or your association’s governing documents require open meetings, trustees who conduct association business, vote, or even discuss association issues in e-mails could violate the requirement that owners be notified of the meeting and given an opportunity to attend it.
Trustees could receive email notices of upcoming meetings, including summaries of the information to be discussed without violating the law. But e-mail communications in which a majority of board members discuss association business could be construed as a meeting, and decisions made or actions taken as a result of those discussions could be challenged.
Two or more trustees could discuss board business without technically violating the law, as long as they don’t constitute a quorum. But just because something is technically permissible doesn’t mean it’s advisable. You have to consider the optics – how the e-mail discussion would look to owners who are not privy to it. And there is no question that it will look to some as if the board has something to hide.
For that reason, I advise board members who aren’t subject to the open meeting requirement to operate as if they are, and avoid substantive discussions of association business in e-mail.
Creating a Public Record
There are other reasons for boards to limit their use of e-mail. The condominium laws in many states and governing documents for many condo associations require boards to retain official records related to the management and governance of the community, and to make those records available to owners who request them. Because most of these statutes and documents were written before e-mail existed, they don’t usually reference electronic communications specifically. But it is possible, and even likely, that some courts would rule that e-mail communications qualify as official records that boards must preserve and make available to owners. Consider that prospect for a moment.
Trustees speaking in an open meeting usually temper their comments accordingly. They don’t always exercise the same restraint in e-mail communications. Intemperate remarks in a meeting will be heard only by those attending it and, in most cases, soon forgotten. Angry or unflattering e-mail messages that become part of the association’s official records could be featured on owners’ blogs or on Yahoo, where they will have a very wide audience and a very long shelf life.
The ‘Oops’ Risk
There is also the potential for sending an e-mail accidentally to someone who shouldn’t receive it. Hitting “reply all” on a message will send it to everyone on that e-mail thread, including, perhaps a board member about whom you have made disparaging remarks – awkward, to say the least. Mischievous or malevolent hacking by a third party could also circulate what is supposed to be a private email discussion among board members to the entire community – or the world.
The Missouri Bar Association is so concerned about the security risks inherent in e-mail, it requires law firms to include this disclaimer in their electronic communications:
- E-mail communications are not a secure method of communication;
- Any email that is sent to you or by you may be copied and held by various computers it passes through as it goes from sender to recipient;
- persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the email passes through. I am communicating to you via email because you have consented to receive communications….
Is It Privileged?
The unintended and possibly widespread circulation of “private” e-mail communications, through hacking or carelessness, could prove embarrassing for individual board members and for the entire board. But potential embarrassment isn’t the only concern.
E-mail messages are no different from any written document you might produce: Anything you say in an e-mail message is potentially “discoverable” by your adversaries in a legal proceeding, who could, and almost certainly would, use any negative or incriminating information against you.
Communications with the association’s attorney are protected by attorney-client privilege and so aren’t generally subject to discovery – unless board members waive the privilege, which they would do, albeit unintentionally, by sharing the contents of an otherwise protected communication with a third party who isn’t covered by the privilege.
Illustrating the point, a Massachusetts Superior Court judge ruled recently in a suit challenging the transfer of stock that e-mail communications between the plaintiffs and their attorney weren’t privileged, because the plaintiffs had shared those messages with their brother, who was not represented by the attorney.
This is a complex area in which the legal boundaries aren’t entirely clear. For example, a board member who shares the contents of an attorney’s privileged communication with a friend or family member would clearly shatter the privilege. While an attorney’s e-mailed advice to the board and to the association’s manager, as an agent of the board, would be protected, some attorneys caution that an e-mail discussion of that advice among board members may not be, if a court construes the privilege narrowly to apply only to direct communications between attorneys and their clients.
A board could certainly argue, and I would argue for it, that board members should be able to discuss legal advice they have received without violating the privilege. But that is not a battle any board wants to fight. The safest course, without question, is to avoid using e-mail to discuss legal matters or any other sensitive or potentially sensitive information.
Some condo association boards (none of which I’m aware in New England) have taken steps to reduce their e-mail risks, by encrypting their messages or by creating special portals or designated e-mail addresses through which all board communications are channeled.
These measures have much to recommend them. They won’t guarantee that private e-mail will remain private; they won’t control the “loose lips” that make indiscreet comments or share e-mails inappropriately and they won’t protect e-mail communications from discovery in a legal proceeding. But having all association-related e-mail communications in one location will make it easier to produce them, if required by a discovery order, because they won’t be intermingled with thousands of other unrelated documents. And requiring special treatment of association-related e-mail may make board members think twice about what they say in these communications and with whom they share them.
Web sites and social media also create a range of legal risks for condo associations, which we’ll explore in a future alert.