Board membership is never 'temporary'

Q. What is the process to assign a temporary board member to replace a board member who is seriously ill and unable to fulfill his duties to the association for the unknown future?

A. There is no authority to fill a board seat on a temporary basis. That is, there is no authority for a board member to step down from the board on a temporary basis during their term and then to rejoin the board during that term when they are able.

The board member in question would remain on the board until the earlier of the end of his term, or until he resigns, or passes. A board member may resign in writing signed by the board member, and delivered to the board. A resignation is effective upon delivery, unless it states some future effective date. The board would then generally have the authority to fill the vacancy until the next annual meeting.

Q. The board of our association sought a legal opinion on an issue involving a dispute with an owner regarding responsibility for damages within the owner's unit from a roof leak. The owner claims the association was negligent and is responsible, and the association claims it is not. The attorney's opinion addressed the merits of the owner's contention, and described circumstances that would support the owner's position and which would support the association's position. The board then forwarded the attorney's letter to the owner, and advised the owner that the board's decision not to repair the damage was correct. Should the attorney's letter have been provided to the owner here?

A. The attorney's letter should not have been forwarded to the unit owner. Communication between the association's board and the association's attorney is covered by the attorney-client privilege. This means owners and other third parties are not entitled to see such communication.

Importantly, such communication is protected from disclosure to the opposing party in litigation that concerns the issue that was the subject of the attorney's communication. Dissemination of the attorney's opinion to an owner constitutes a waiver of the attorney-client privilege. This means any communication between the association and association's counsel on the subject would have to be delivered to the opposing party in litigation.

Moreover, the release of the attorney's letter to the unit owner here gives the owner an insight into the potential weakness of the association's position. This could increase the likelihood of litigation and a decision against the association in court. The board here should have simply advised the owner that the board consulted with its attorney and the board stands by its decision.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.