An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published July 1, 2010


Judging by the columns of Donna Berger (Katzman Garfinkel & Berger) and Lisa Magill (Becker & Poliakoff), DBPR arbitrator Tonya S. Chavis must have committed a total faux pas when ruling that a "legal opinion of the Associationís counsel regarding the propriety of the boardís action taken in preparing the budget for the calendar year 2007" was NOT protected by attorney-client privilege.


In the arbitration case DOUGLAS BLASS v. ILLINI ASSOCIATION, INC. [Case No. 2009-04-3047] the Petitioner made a record request and was denied by the association on advice of the association attorney, Bradley Rothenberg, Esq. from the law firm of Becker & Poliakoff, P.A. Petitioner filed for Mandatory Non-binding Arbitration.


The legal opinion in question was prepared by the association attorney relating to the question whether or not the board was required to obtain a 60% unit owner approval of the proposed budget.


Please note that we are discussing here a legal opinion to a matter of procedure, not a pending lawsuit or a lawsuit against a developer, obviously the favorite example of attorneys when they want to hide public documents behind the attorney-client privilege excuse.


I'm normally not a fan of the decisions made by the DBPR Arbitration Section, but in this case I feel the arbitrator was 150% correct. I even feel that the attorney should have paid for the cost of the litigation, because Rothenberg caused the cost with his advice.


I think it all hinges on the question: WHO IS THE CLIENT? In my opinion the client is actually the whole membership -- the same folks who pay the attorney's bills. A decision of the Florida Appeals Court 3. District from 2003 [ YACHT CLUB SOUTHEASTERN, INC v. SUNSET HARBOUR NORTH CONDOMINIUM ASSOCIATION, INC. ] (Check Paragraph 16) explains it in more detail.


In this arbitration case we are not even talking about any litigation -- the litigation only started after the association refused to make the "legal opinion" public.


In a developing case regarding a record request a sitting board member is even being denied to inspect "All financial records regarding the cost of the development, presentation, and proxy solicitation of the aforementioned By-Law Amendment, including but not necessarily limited to Legal and other Professional FeesÖ"


Back came the usual answer: Attorney-client privileged documents. 

But it got even more confusing when attorney Marty Platts from the law firm of Becker & Poliakoff P.A. wrote in a letter explaining the refusal of the record request: "Please be advised that neither you, as a homeowner, nor you, as a Board member, are the client. As such, no attorney/client privileged documents will be made available to you for inspection and/or copying."


In that case: WHO REALLY IS THE CLIENT? Not the owners, not the board members -- who is left? In Platts' letter she totally forgot to explain who the client is, after she named all the folks who are not the client. Who is left to be the client? The board president?


To me, it seems that some board members and attorneys are using the excuse of attorney-client privilege to hide documents they don't want anybody to see.


I absolutely understand attorney-client privilege in a pending lawsuit and agree that only a limited group of the association board/membership should have access to the information pertaining to the lawsuit. But in cases of attorney billing and/or interpretations of governing documents and statutes, it is of interest to the whole membership, not just a selected few.


Only too often owners, inquiring at meetings if procedures are followed according to rules and/or statutes, are told by board members: "We are following advice of counsel!" But if the owners want to see the "advice of counsel," they hear the common excuse: Attorney-client privileged!


In other words: ATTORNEY-CLIENT PRIVILEGE is in many cases not used as a privilege any more; it's used as a cover-up and excuse. And this has to stop! Instead of protecting privileges it creates litigation -- as seen in the above arbitration ruling -- and billing hours for attorneys. And it leaves a frustrated ownership which is supposed to foot these bills.


A privilege should be used as a privilege (special entitlement), but if it is abused it should be taken away. Arbitrator Tonya Chavis was in my opinion absolutely correct!