Attorney Client Privilege - What are the limits?

Attorney Client Privilege - What are the limits?

Administrator's Note: On February 10th, 2016 Debbie Blais initiated a document Request to the GLA Board and Attorney Alanah Griffith. That request and subsequent responses were released to landowners via a GLFPC email on February 17th, 2016. Leo Keeler then responded with a Document Request for the GLA Board. The original exchange is posted below and sorted chronologically. Although long, the exchange is quite revealing.




GLA Board and Attorney Alanah Griffith,

Please see attached Formal GLA Document Request Form and Agreement requesting information regarding recent questions submitted by GLA Board of Directors (Legal Committee, in particular) and responses from Attorney Alanah Griffith regarding GLA Governing Documents interpretations, opinions, etc. The textual content of that form is embedded, below in this email, as most GLA Board Members are not able to receive, access nor open email attachments sent to the Official GLA Board Email: info@glamontana.org

This information is requested under both GLA Bylaws and MT State statutes 35-2-906 and 35-2-907, allowing 5 business days for it to be provided.

The information is requested today, February 10th, 2016, eight (8) business days prior to the GLA Special Meeting of the Members to be held Saturday, Feb 20th, 2016. It is urgently required by the landowners PRIOR to the meeting on Feb 20th in order to review, prepare and formulate any follow-on questions for the attorney at that meeting.

GLA Board Member Dan Kehoe’s verbal response at the Feb 8th Board Meeting of “Become a Board Member.” when I asked how to obtain the information, was inappropriate and a slam to all landowners the Board serves. It displays the GLA Board’s attitude of superiority and efforts to keep this information away from landowners (discussed only in Closed Meetings) and kept secret under the guise of “Attorney-Client privilege”. May I remind all involved that the GLA landowner’s assessments are used to pay for GLA Governing Document attorney advice and interpretation and that the advice is pertinent to ALL GLA landowner clients in this attorney-client relationship (not solely the GLA Board of Directors).

Debbie Blais, SG 40-C


Document Request Form information:


Description of information requested:

1. The complete list and text of all questions GLA submitted to Attorney Alanah Griffith Dec, 2015 through Jan, 2016

(referenced by Dan Kehoe in Jan 11, 2016 Board Meeting as having been submitted).

2. The meeting minutes of the GLA Legal Committee meeting with Attorney Alanah Griffith on Jan, 22 2016, including all attendees.

3. The written responses/opinions from Attorney Alanah Griffith to each of those questions in the list

(referenced by D. Kehoe in Feb 8th, 2016 Board Meeting as having been received & up for discussion in GLA Closed Board Session

Agenda Item 8.1 "Report of Legal Committee meeting with attorney" same evening).



Purpose for which information is to be used and reason for request with reasonable particularity:

It is understood by the landowners that the questions submitted were in regard to GLA Governing Document interpretations in several

areas: dwelling assessments, large accessory buildings built prior to a residence in our residential community which facilitates commercial

activity in the absence of a residence, past due assessment interest rates and penalties, use of the term "Association" and what it encompasses, etc.



On Feb 20th, 10 days from now, the GLA is holding a Special Meeting of the Members to review and discuss proposed changes to the

GLA governing documents with same attorney, Alanah Griffith, present. to answer any questions. The GLA Board's submitted questions and

Alanah's responses to them are of an extremely integral nature to this discussion on Feb 20th, 2016, regarding proposed changes to the Gov Docs related

to them. Landowners need to review both the questions & her responses prior to that date, in preparation for this very important meeting.


Signed and Dated: Feb 10, 2016 by Deborah Blais




Dear Deb:

The GLA Board of Directors requested that I respond to your request for documents personally. I noticed that you stated that because the Board uses Association dues to pay for my fees, I must work for the Association Members, not the Board itself. Your statement is a very common misconception. So much so, that there are many cases devoted to the issue (who is the client) and a lot of literature regarding my Rules of Professionalism and Conflict of Interest. As the President of the State Bar’s Professionalism Committee, I am familiar with this area and am happy to share my knowledge on the subject.

An attorney’s client is not necessarily who pays the attorney fees. Think of it like this, a minor child gets into trouble. The parents hire an attorney to represent the child. The attorney is paid by the parents. However, the Rules are clear, the attorney represents the child, not the parents. If the parents want to know what the child discussed with the attorney behind a closed door, the attorney must keep that information confidential.

A corporation is similar. Any Board of Directors of any Non-Profit may use its funds to secure an attorney to represent the Board’s interests on behalf it the Board in its duties to the Association. Some of the advice that I give to the Board is confidential and covered by the Attorney Client privilege. The documents that you are requesting certainly are covered.

If you have any further questions regarding who I represent and the attorney client privilege, please let me know. Believe me, I understand this is complex. A lot of attorney’s don’t understand it, which is why we do continuing legal education on this issue.

Alanah

--

Griffith Law Group
Alanah Griffith
108 N. 11th, Unit #1
Bozeman, MT 59715

(406) 624-3585





Forwarding this to the GLA Board of Directors, since Alanah states the GLA Board of Directors requested she respond, below, to me. And I’m not understanding why her response, below, was only sent to a single Board Member? And not to the entire GLA Board, for whom she advises?

She states that she advises the Board, and that the documents I’m requesting are GLA Board confidential. It is important all GLA Board Members are aware that she is representing the GLA Board’s interests (ie. your interests) on behalf of your duties to the Association , so that each and every one of you is entitled to the documents I requested.

If any of you have not yet had opportunity to see the final version of the questions submitted to the attorney nor Alanah’s original verbiage in response to those questions, please request it first-hand for yourself. Each time her responses are interpreted and repeated by another person, something is lost. These responses need to be on the record for future reference by any GLA Board Member – either current or yet to come.

Please also ask that the Legal Committee Meeting minutes from the January 22nd meeting with Alanah Griffith, including attendees, are also put on the record per GLA Bylaws, Article VI Board of Directors, paragraph I, Committees, which states: “All committees shall keep Minutes reflecting the committee members attending and the actions taken.” Sub item 4 in that paragraph includes the Legal Committee.

Sincerely, Debbie Blais, SG 40-C




GLA Board of Directors,

Proper assessment of Dwelling Units by the GLA, and the specific advice the attorney gave on this subject Jan 22nd, was one of my reasons for my Document Request, below – that was denied on the basis of “attorney-client privilege”.

Attending the GLA Communications Committee meeting last night, it was a surprise to see on the Agenda distributed at the meeting (and not made known in advance of the meeting) Dwelling Unit Assessments and Finalization of a letter to the landowners regarding additional Dwelling Unit Assessments.

The letter handed out at the meeting last night was several times attributed to Board Member Kevin Newby – and implied to be the one he had submitted. However, no mention was made of 2 critical changes to it – and no mention made as to who made these changes or why?

· The bolded sentence near the top said to contact the Project Review Committee, but the phrase “ to schedule a site visitation for review. “ was deleted.

· Item 2) in the clarification for Cooking facilities was changed:

o FROM: “2) either gas or electrical hookups allowing a cooktop, stove or range to be used or installed (if appliance is not present).”

o TO: “2) either gas or electrical cooktop, stove or range to be used.”

I heard for the 2nd time last night from Dan Kehoe (spokesman for the GLA Legal Committee) some oblique, unspecified references to “case law” and to an unspecified ruling of the MT Supreme Court that there was some requirement for “either gas or electrical cooktop, stove or range to be used” and a refrigerator to be installed for a kitchen. This was the same as during the Feb 8th Board meeting, when he tried to verbalize the attorney’s opinion – unclearly and unsuccessfully. Again, I asked for the statutes or specific references to case law that he was basing his statements on. Again – same as during the Feb 8th Board meeting – he would not or could not provide them. He kept mentioning the term “kitchen” in regards to these requirements. When I pointed out that the GLA definition of a Dwelling Unit specifies “cooking facilities” and not a kitchen, his argument and statements requiring the presence of cooking appliances and a refrigerator seemed to disintegrate. Dennis Riley at one point said “there was no exact wording from the attorney”. Charlotte Mizzi suggested “running this letter by the attorney”. Dan was left with the Action Item to revise the letter for another review.

This confusion in terms and advice, rulings and case law on “kitchens” when our Covenants specify “cooking facilities” is why I requested the documents I did. The GLA cannot fall back on un-documented, confidential, attorney-client privileged information to justify accurate Dwelling Unit assessments. The GLA must be able to accurately and honestly disclose to the landowners the logical basis of any new assessments made and a clarification of the term “cooking facilities” that we can all understand and that will be able to be consistently applied – at any time.

The clarification needs to be as cut and dry as possible to avoid contention and confusion when making assessments and doing site inspections. The presence of a gas line for a gas stove/range or the presence of an electrical outlet or hookup that would allow a cooktop, microwave or range to be used, is much more objectively verified than the one-time past presence or current presence of an appliance used to do the cooking. Trying to verify cooking facilities with the presence of the appliances installed leads to the same games that were played when Mr. Pinardo’s range/stove was removed from his garage in an effort to bypass assessment of that Dwelling Unit. It leads to questions about suspending Dwelling Unit assessments when one is vacant, without appliances. And trying to verify if there was ever an appliance installed is just as problematic! How would that be accomplished?

If the GLA is relying on attorney advice or opinion regarding the interpretation and clarification of the term “cooking facilities” in order to accurately assess Dwelling Units, written documentation of that opinion or advice should be available for disclosure to all landowners and any future GLA Boards so assessments can be consistently made both now and in the future.

Debbie Blais SG 40-C




Hello Alanah

I am sending this request for clarification directly to you because you included me in your response to Debbie Blais, and I am sending it to the GLA Board as a DOCUMENT REQUEST.

Alanah, I am hoping you can specify when the attorney client privilege supersedes the fiduciary relation/responsibilities of individual Board members and the Board as a unit to Landowners. Many Glastonbury Landowners are becoming more and more distrustful of the Board due to lack of transparency and what appears to be use of attorney/client privileges to achieve goals hidden from the membership. Many Members have made requests for documents held by the Board that DO NOT involve a specific Member or a civil or criminal case. All requests are answered with “That’s Attorney/Client Privileged Information or statements similar to what Debbie was told “if you that information GET ON THE BOARD”.

The requests I, Debbie and others have made are for copies of basic information, such as the letter the Legal Committee sent to you (without Board approval) immediately prior to our January 11th,Board meeting. We believe the letter/e-mail sent to you by Dan Kehoe pertained to how address our Covenant definition for charges for a dwelling unit, how Covenant 12.01 can be utilized, plus at least 2 other questions.

Some Board members were provided a draft of that letter, but it was sent before they could comment and it was not voted on by the Board as required by Bylaw Article VI (B) and (H). Item B states in critical part “Such Directors shall in all cases act as a Board and item H states “The Directors shall act only as a Board and the individual Directors shall have no authority as such. “

Members are also seeking the Minutes the Legal Committee is required to keep by our Bylaws (Article VI (I)) and State Law (35-2-906(1) and 35-2-907 (1). The Legal Committee has never provided Minutes to the Board or to Landowners, so it is acting autonomously and hiding everything from Members. Whenever asked to learn what is sent to you about changing our Governing Documents, the Chairman of the Legal Committee, Mr. Dan Kehoe, continually says the information and questions sent to you are part of the Attorney Client privileged information.

Since you consider the Board your client, it is understandable that your replies to them may fall under privileged information, of which they must decide how much to allow Members to see directly or obtain copies of, with inappropriate portions redacted. However their initial request to you for guidance on changes to our Governing Documents must be made on behalf of the entire Membership, and all questions or positions they take must be available for any Member review.

By not having access to what the Legal Committee and/or Board are asking you in reference to our Governing Documents, and potential changes, Members are forced to believe the Board, or Legal Committee have goals or objectives they desire to achieve without informing the general Membership. The consistent use of Attorney Client privilege as a reason not to respond to Members has resulted in a division to Board/Legal Committee vs. Members and Long Term Landowners vs. Newcomers.

I ask you where the break is for the Board to change from fulfilling their fiduciary responsibilities to applying attorney client privilege. Asking the client to protect your advice to them as privileged information is understandable. However many of us believe their applying that privilege to initial actions and not providing the required record of minutes is violating their fiduciary responsibilities and creating or increasing distrust.

Since I am including the Board in this e-mail, I ask that you as an attorney inform them of the limits on attorney client privilege in a way they can pass that on to Members. I also hope you can advise the Board they must provide a copy of the Charter for the Legal Committee, or other authorization enabling the Committee to act without a vote of the entire Board.

Leo Keeler, SG 26A-1.