Confidentiality and Privilege: What a Director May and May Not Repeat

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

• Published September 25, 2026
• Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
• Florida Statutes as of July 1, 2026
• Applies to: Condominiums · HOAs · Cooperatives

A director hears things owners do not: what the association's lawyer thinks of a claim, why an employee was disciplined, what a neighbor wrote in a request for an accommodation. Almost none of it is yours to repeat. The association holds the attorney-client privilege, not you, and a single forwarded e-mail can end it for everyone. This guide sets out what stays inside the room in a condominium, cooperative or homeowners association, and why.

The privilege belongs to the association, not to you

Florida's lawyer-client privilege is in § 90.502. Under § 90.502(1)(b), a client can be a corporation, association or other organization, and your association is one. When the board retains counsel, the client is the corporate entity. It is not the president who made the call, not the three directors who sat in on the meeting, and not the owners who pay the assessments that fund the fee.

That single fact answers most of the questions directors ask. Under § 90.502(2) the client holds the privilege and may refuse to disclose confidential communications made in the rendition of legal services. Under § 90.502(3) the persons who may claim it are the client, certain representatives, and the lawyer acting on the client's behalf. A director is none of those in a personal capacity. You hear privileged advice because you are a member of the body that governs the client, and you hold it in trust for the association, the way you hold everything else about the office.

The corollary matters too. Because the privilege is the association's, only the board can waive it, by a vote at a properly noticed meeting. No individual director has authority to waive it or to promise an owner that it will be waived. What an individual director can do, without any vote at all, is destroy it.

Directors of all three kinds of association hold a fiduciary relationship to the owners they serve: § 718.111(1)(a) for condominiums, § 719.104(9)(a) for cooperatives, and § 720.303(1) for HOAs, which also subjects directors to the general corporate standards in § 617.0830. Confidentiality is part of that duty, and our guide to director fiduciary responsibilities covers the rest of it.

How privilege gets waived, usually by accident

Directors sometimes ask whether the association has any privilege at all when nothing is in suit. It does. Section 90.502 asks whether legal services were rendered, not whether a case is pending, and the word litigation does not appear anywhere in it. The condition the statute does impose is confidentiality. Under § 90.502(1)(c) a communication between lawyer and client is confidential only if it is "not intended to be disclosed to third persons other than" those to whom disclosure is in furtherance of the rendition of legal services and those reasonably necessary for the transmission of the communication. That is where associations actually lose the protection, and they usually lose it by their own hand.

Section 90.507 is short and unforgiving. A person who holds a privilege waives it by voluntarily disclosing, or consenting to the disclosure of, any significant part of the communication, or by making the communication where there is no reasonable expectation of privacy. There is no good-faith exception and no undo button. Once a significant part of the advice is out, the protection over that subject is gone, and the association can be made to produce the letter in the very dispute it was written about.

These are the ways boards actually lose it:

• Forwarding the opinion letter. A director sends counsel's memo to an owner who has been asking hard questions, or to a candidate, or to the owner on the other side of the very dispute the memo analyzes.
• Reading it aloud in an open meeting. Summarizing the lawyer's conclusion in front of an audience of owners is disclosure. So is putting the letter in the board packet that goes out to the community.
• Posting it. Attaching the memo to a community newsletter, an owner portal, or a neighborhood social media group.
• Copying outsiders on the e-mail. A spouse, an adult child, a friend who is a lawyer somewhere else, a vendor, a former director. Adding anyone outside the client to the thread invites the argument that the communication was never confidential.
• Talking about it at the pool. A conversation within earshot of owners is a communication made without a reasonable expectation of privacy.

The safest habit is simple: written legal advice stays within the board, the manager, and anyone counsel identifies as part of the privileged group. If the board wants owners to know the conclusion, ask counsel for a separate communication written to be shared. The same discipline applies to text threads and group chats, covered in our guide on board e-mail and text messages.

The records exemption is a different thing from the privilege

Boards tend to run two ideas together. The privilege is an evidentiary rule that keeps confidential legal communications out of a proceeding. The records exemption is a statutory carve-out from an owner's right to inspect the association's official records. They usually cover the same document, but they are not the same rule and they fail in different ways.

Each chapter contains its own list of records that are not accessible to owners:

Each list also protects social security and driver license numbers, electronic security measures, and the software and operating system used by the association. The chapter-specific details are set out in our articles on condominium records exempt from inspection and HOA records exempt from inspection.

The first item on each of those lists is the one boards and owners most often misread, and it is worth reading in full. Section 718.111(12)(c)5. begins: "Notwithstanding this paragraph, the following records are not accessible to unit owners:" Sub-subparagraph a. then exempts:

"Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including a record prepared by an association attorney or prepared at the attorney's express direction, which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of such litigation or proceedings until the conclusion of the litigation or proceedings."

Section 719.104(2)(c)1. and § 720.303(5)(g)1. say the same thing, differing only in punctuation and in the words "including, but not limited to." Neither variation changes the reading.

Read that sentence with its conjunction exposed and there are two protected categories, not one. The first is any record protected by the lawyer-client privilege as described in § 90.502. The second is any record protected by the work-product privilege, and everything after the word "including" describes that second category, down to the sunset at "the conclusion of the litigation or proceedings." In our view the litigation language cannot be read back onto the first category. It modifies the antecedent nearest to it. If it governed both, the lawyer-client clause would protect nothing the work-product clause does not already protect, and the Legislature's cross-reference to § 90.502 would do no work. Section 90.502 supplies no litigation trigger of its own: it turns on the rendition of legal services, and § 90.502(1)(b) defines a client to include a corporation or association.

That reading is textual. So far as we are aware, no Florida appellate court has construed the lawyer-client clause of any of these three exemptions, and we do not claim appellate authority for it. What follows from it is practical. A general counsel opinion letter written with no litigation in prospect is exempt from owner inspection, provided it was confidential and stayed that way. And because the "until the conclusion of the litigation or proceedings" sunset sits inside the work-product clause, attorney-client protection does not expire when a case ends. Work-product protection does.

Two further points follow. First, the exemption attaches to the record, so a privileged memo does not become producible merely because a director mentioned it out loud, even though the privilege itself may have been waived. Second, the exemption is not a general confidentiality rule. A board cannot stamp a bid tabulation or a reserve study "attorney-client" and remove it from inspection. When a request arrives, sort the file record by record against the statutory list rather than withholding the folder. Our guide to responding to records requests walks through the mechanics.

Closed sessions and their proper scope

Board meetings are open to owners. Each chapter creates exactly two exceptions, and they are narrower than most boards assume.

Read the condominium and cooperative language closely. The session must be with the attorney, it must concern proposed or pending litigation, and it must be for the purpose of seeking or rendering legal advice. All three conditions. A general discussion of a difficult owner, with no lawyer in the room and no litigation in prospect, does not qualify. Neither does a closed session to argue about the budget, to pick a roofing contractor, or to vote on a fine, however uncomfortable those subjects are in front of an audience.

The text is short enough to quote. Section 718.112(2)(c)5. provides: "Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners does not apply to: a. Meetings between the board or a committee and the association's attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or b. Board meetings held for the purpose of discussing personnel matters." Section 719.106(1)(c) uses the same words for cooperatives: "meetings between the board or a committee and the association's attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice." And § 720.303(2)(a) provides that "Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege."

Set that beside the records exemption and the asymmetry is plain, and it is the opposite of what most boards assume. The Legislature conditioned the meeting exception on proposed or pending litigation and did not condition the lawyer-client records exemption on anything of the kind. So counsel's memo on a proposed amendment is exempt from owner inspection with no litigation in sight, while the meeting at which the board discusses that memo must be open. A board may not close a meeting merely to receive general legal advice. With nothing proposed or pending, the board takes the advice in front of the owners, or takes it in writing and the directors read it outside a meeting.

"Personnel matters" means the association's employees: hiring, discipline, compensation, complaints against a staff member. It does not mean a dispute with the management company about its contract. Where a manager is employed by a management company rather than by the association, whether that person's evaluation is a "personnel matter" for the association is less clear, and the Division has not addressed it directly.

Whether a board may vote in a closed session, or in the closed portion of a meeting, is a question the statutes do not answer. Neither § 718.112(2)(c) nor § 720.303(2) contains any language about voting or taking action in a closed session, and neither mentions minutes of one. Nothing in either section prohibits a vote. Practitioners differ on what to do with that silence. Some counsel prefer that the board hold the discussion behind closed doors, then reconvene and vote in the open portion, so the action appears in the minutes and no owner can argue the decision was made out of sight. In our view that is a practice preference rather than a statutory requirement, and a board that votes in closed session is not violating anything these sections say.

A board that closes a meeting for a purpose the statute does not authorize has held an improper closed meeting, and the decisions taken there are exposed on that basis alone. The practical rule: call the attorney session for the litigation item, take that item, then reopen and take everything else in front of the owners.

Personnel and medical information

Personnel and medical records are exempt from owner inspection, but the exemption protects the file, not the conversation. A director who tells the community why the maintenance supervisor was let go has not violated the records statute, because no record was produced. That director has still disclosed information held in a fiduciary capacity, and in the employment context that disclosure can cost the association far more than a records violation would.

Medical information reaches a board more often than directors expect. It arrives in a request for a reasonable accommodation for an assistance animal, in a hardship letter attached to a payment plan request, and in an incident report after a fall in the lobby. Fair housing law limits both what the association may ask and what it may repeat, independently of the Florida records exemptions.

A workable rule for the board packet: accommodation requests, hardship letters and anything describing a person's condition are summarized in the terms the decision actually turns on, and the underlying paper stays with the manager or counsel. That protects the information and still gives every director what is needed to vote.

The director who wants to use board information in a personal dispute

Every director is also an owner, and owners have disputes with their associations. A director who is fighting a violation notice, a special assessment or a lien occupies both roles at once, and the temptation to use the board seat is real.

The line is not difficult to state. Information you receive as a director, you hold for the association. You may not use it to advance a claim against the association, and you may not use it to help a neighbor advance one. Reading counsel's assessment of the association's exposure and then filing a demand that quotes it is a breach of the duty of loyalty, and it will not make the underlying claim stronger.

What such a director may do is participate as an owner on the same terms as any other owner: request records under the chapter's inspection provision, attend meetings, speak, run for office, vote as an owner, and hire personal counsel. Where the association's interest and the director's personal interest genuinely collide, the right move is usually to recuse from the board's discussion of that matter, note the recusal in the minutes, and leave the room while the board takes its own legal advice. Counsel represents the association, not the director, and a director who forgets that ends up with no privilege of their own at all.

What to tell a director who leaves the board

Departure ends the access and not the obligation. Say so plainly, in writing, on the way out. A short letter from the association covers four points:

1. The duty of confidentiality continues. Nothing about a departure releases a former director to publish what was learned in office. The association's privilege survives the director's term.
2. Return the records. Association documents, keys, cards, files, and any e-mail or cloud folder containing association material go back. A former director who keeps and later uses association files creates a problem for both sides.
3. Access changes. A former director who is still an owner inspects records as an owner, and every statutory exemption applies. The privileged memos that came to the board packet last year are no longer available to that person.
4. Preservation obligations, if any, continue. If the association is in or near litigation, a departing director's e-mail and texts may still be within the scope of a hold. See our guide to litigation holds and record preservation.

Send the same letter whether the director resigned, was recalled, or simply was not re-elected. It is not an accusation. It is the association writing down what the law already requires, at the one moment when everyone is paying attention.

Six habits that keep a board out of trouble

• Treat every written communication from counsel as board-eyes-only unless counsel says otherwise in the document itself.
• Ask counsel for a shareable version whenever the board wants owners to know the outcome. Do not summarize the memo yourself in the newsletter.
• Keep legal discussions on association e-mail addresses and out of group texts, and never add a non-director to the thread.
• Close a meeting only for the two statutory purposes, state the purpose on the record, and reopen as soon as that item is finished.
• Keep accommodation requests, hardship letters and employee files with the manager or counsel rather than in the general board packet.
• When you are unsure whether a fact is yours to repeat, assume it is not, and ask before you speak. Our guide on when to call the association attorney covers the calls worth making.

None of this is secrecy for its own sake. An association that protects its privileged advice gets candid advice, and candid advice makes for better decisions in front of the owners. A board that leaks its own legal analysis ends up with counsel who write carefully, say less, and cost more.

Contact Hamilton Mikes

Hamilton Mikes advises condominium, cooperative and homeowners association boards in Lee, Collier and Charlotte Counties on confidentiality policies, closed-session practice, and responding to records requests without giving away privileged material. Call 239-594-7227 or visit our Official Records page.