The Board Room: Why those confidential emails may end up in court anyway

Using email for co-op and condo board business is fast, easy, and efficient.  It’s also far less private than you probably think.

Time and again, New York City co-op and condo boards involved in legal disputes are required to disclose emails that they never, in their wildest imagination, dreamed would ever be read by anyone other than their fellow board members, and maybe their managing agent, or even their attorney.  These emails often wind up damaging their case, or worse. 

Here are two ways it could happen to you:

1. You assume that copying your attorney on your email will make it privileged

It’s a commonly believed myth that the mere expedient of copying your attorney on an email distribution list automatically renders the communication subject to the attorney client privilege.  This is not the case. 

In order for the attorney-client privilege to attach, the email must either be (i) from the attorney and provide legal advice; (ii) from a board member or managing agent and seek legal advice; or (iii) be discussing legal/litigation strategy. 

Here’s an example of protected versus unprotected communication in an email that cc’s the board’s attorney:

Privileged: “ Would a bylaw preventing real estate brokers from serving on the board be enforceable?” This is privileged because it requests legal advice.

Not privileged:  “The Board members decided to enact a by-law preventing real estate brokers from serving on the Board. Can your firm please draft the resolution.”  This communication likely will not be found privileged, because it does not seek legal advice, nor discuss legal/litigation strategy. 

2. You conduct board business via your work email account

Most employers these days have a policy stating that email communications made through the company’s system and/or with a company email address are subject to content restrictions and are subject to review by the company. 

Moreover, there is a growing body of law that stands for the proposition that where there is no expectation of privacy due to corporate policy, emails that might otherwise be subject to the attorney client privilege lose their protected status.  I

Bottom line: When you send a board-related email, remember that if your boss can read it, your adversary in a future litigation might also be entitled to see the email even if you copied your attorney on it.

Some suggestions for preventing disclosure problems related to emails:

First, be very circumspect in what you put in writing.  Even an email that has no negative legal implications could wind up being embarrassing if written in the heat of anger and later disclosed.  If something relating to your board duties has angered you, address it in a real-time meeting or conference call.   If you feel compelled to send an email, wait some time and enable your emotions to settle down before sending the email.

Second, consider having your board set up a private email forum (such as Google Groups or Yahoo Groups) with Gmail or Yahoo email accounts for board members.  Not only will this prevent the problems potentially associated with using your work email, but it will also alleviate what often becomes a very heavy burden of having to go back in time—sometimes years after the fact--on multiple computers to dig up hundreds of board-related emails that have been demanded during the discovery process in litigation.  Cloud-based solutions cost little or nothing, and they can result in significant benefit, not only from a legal perspective, but from a general archival one as well.

Finally, as stated above, do not assume that a communication will be privileged just because you copy your attorney on it.  Only emails that provide or seek legal advice or discuss legal strategy will be protected by the attorney client privilege and not subject to disclosure in the event of litigation.

Robert J. Braverman is a partner at the law firm of Braverman & Associates, specializing in the representation of New York City co-op and condominium boards.