Litigation – Attorney Client Privilege

§4935  (a) The board may adjourn to, or meet solely in, executive session to consider litigation,
Only if open discussion “would prejudice the position of the agency in the litigation.” The litigation must be named on the posted agenda or announced in open session unless doing so would jeopardize the board’s ability to service process on an unserved party or conclude existing settlement negotiations to its advantage. (§4956.9)
To qualify, the agency must:

be a party to pending litigation (§ 54956.9(a))

or expect, based on certain specified facts, to be sued (§§ 54956.9(b)(1),(b)(2))

or expect to file suit itself (§ 54956.9(c))   Brown Act Pocket Guide

Members have an interest in knowing about litigation involving their association and boards should keep them informed.  

See page 14 of Open Meeting Act by Curtis Sproul Esq. on Attorney Client Privilege

Law Seminar Michael Karpoff Esq  30 pages

Noted in Open Meeting Minutes.

Even though members do not have the right to attend executive sessions, boards must keep members informed about the general nature of the business conducted in their executive sessions. The minutes of the next open board meeting must generally reflect the board’s executive session:

Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership. (Civ. Code §4935(e).)

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2 comments on “Executive Session 4935 A Litigation – Attorney Client Privilege

  1. Are all conversation that take place in Executive Session while the Association Attorney is present considered confidential?


    We discuss Robert’s Rules of order, and what is means that they are named in our By-Laws as our officially adopted Parliamentary Rules. The attorney gives his opinion to various individuals on this and that having to do with Parliamentary Procedure.

    A discussion takes place that has nothing to do with litigation, is not “legal advice” for association business, and is does not fall under any of the authorized topics listed in Ca Civil Code 4935.

    Do the “protections” of Attorney-Client privilege extend to such discussions?

    It seems like it should not, but I’m not sure, so that’s why I’m asking you 🙂

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