Earlier this month, the Superior Court issued a noteworthy decision providing that the attorney-client privilege protects communications
with property managers – as “necessary agents” of the board – in connection with litigation involving the condominium. Furthermore, the Court ruled, that communications with the Board’s engineering expert – which included the property manager – were not discoverable under the Rules of Civil Procedure.
The case – Board of Trustees of The 488 DOT Condominium Trust v. R&B Investments, LLC, et al., Suffolk Superior Court (Civil Action No. 2084 CV 2009) – involves the 488 DOT Condominium, a thirty-three unit residential condominium located in South Boston. The condominium trust (the “Board”) initiated the lawsuit against the condominium’s developer and related parties (collectively the “Defendants”) seeking to recover damages related to certain alleged widespread deficiencies in the design and construction of the common areas and facilities of the condominium. The alleged construction deficiencies included claims of deficient roofing and window flashing that led to water infiltration throughout the building. Criterium Engineers (“Criterium”) is serving as the board’s expert in connection with the pending lawsuit. The Dartmouth Group (“TDG”) is the board’s property manager.
The Defendants served a subpoena on TDG and – after TDG asserted an objection – filed a motion to compel the production of communications between the Board and its counsel, which included TDG, as well as any communications with Criterium. The Defendants argued that the Board waived the attorney-client privilege by including TDG on communications with counsel. They further argued that the communications with Criterium did not constitute protected work product.
The Board contended that TDG is its “necessary agent” and accordingly, all such communications – insofar as they reflect legal advice or otherwise relate to the prosecution of the lawsuit – are privileged. Indeed, the Supreme Judicial Court had previously stated that “[t]he attorney-client privilege not only protects statements made by the client to the attorney in confidence for the purpose of obtaining legal advice in a particular matter, but also protects such statements made to or shared with necessary agents of the attorney or the client”. Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc.,(2007). However, there had never been a reported decision in the Commonwealth that found that a condominium’s property manager qualified as such a “necessary agent.” In general, the disclosure of attorney-client communication to a third party serves to undermine the privilege. The Defendants argued that – where TDG was retained by the Board to perform property management services regardless of whether litigation was contemplated – the inclusion of TDG on any communications between the Board and its counsel resulted in a waiver of privilege.
Judge Squires-Lee disagreed, concluding “that Dartmouth was acting as a necessary agent for the Board to facilitate the needed factual investigation of the conditions at the Condominium and the scope of necessary repairs for the purpose of obtaining legal advice regarding the legal claims that have been asserted in this case. Put elsewise, the Board needed Dartmouth to assist counsel to conduct the factual investigation necessary to obtain and implement counsel’s advice.”
The Court similarly denied the Defendants’
attempt to obtain TDG’s communications with Criterium, providing that
“communications between the Board, Dartmouth, Criterium and counsel related to
the litigation and Criterium’s role as an expert consultant and witness are
protected by the work-product doctrine.”
The Court’s decision recognized the critical role that property managers play in assisting their boards with the prosecution of lawsuits. Individuals serving on condominium boards are volunteer laypeople who are otherwise occupied by their professional obligations on a daily basis. Property managers are employed by condominium boards to manage the community’s daily operations and to carry out policies set by the board. With respect to litigation, a board typically relies on its property manager to interact with its counsel in connection with the advancement of a lawsuit. The Court’s decision in the 488 DOT case finally provides supporting authority for the position that the inclusion of property managers on communications between the board and its counsel does not serve to destroy the attorney-client privilege.
It is important to note that the
Court’s decision does not provide blanket protections for any email involving a
board and its property manager where a lawyer is copied on the communication. Only communications that were actually made for the
purpose of obtaining or providing legal advice related to anticipated or actual
litigation with R&B were withheld as privileged.
Similarly, not every communication involving a board’s retained engineering expert would be beyond the scope of allowable discovery permitted under the applicable Rules of Civil Procedure. Indeed, to the extent that emails concerned an extensive remedial project that was performed to address the building’s widespread water infiltration problems, TDG’s communications with Criterium were produced.
The distinctions noted in the previous two paragraphs can be difficult for laypeople board members – or even an experienced property manager – to navigate. A failure to properly manage these communications can result in a waiver of the privilege all together. As such, it is critical to have competent counsel with experience handling these types of lawsuits in order to ensure that strategic communications with counsel and key expert work product are protected from discovery.
A former president of REBA, Tom is a
founding member of the Boston and Quincy-based firm of Moriarty Troyer &
Malloy, LLC and is widely regarded as one of the premier real estate litigators
in the Commonwealth. Tom has extensive experience in the areas of condominium
construction defect and phasing litigation, both in the trial court and at the
appellate court levels, and has litigated and argued several of the seminal
appellate decisions in that arena. Tom can be contacted by email at tmoriarty@lawmtm.com.
