Pending & Threatened Litigation. Boards may go into executive session “to consider litigation…" Merriam-Webster’s Dictionary defines consider as “to think about something or someone carefully especially in order to make a choice or decision.” Black’s Law Dictionary defines litigation as “A lawsuit. Legal action, including all proceedings.” Based on these definitions both threatened and pending litigation fall under the executive session privilege.
Legal Advice. Non-litigation matters, such as legal opinions related insurance, personnel, maintenance, easements, recalls, etc. would also be appropriate topics for executive session. Whenever the association's attorney is giving legal advice to the board, it is protected under Evidence Code §§950-962.
Purpose. Meeting in executive session preserves attorney-client privilege as well as confidentiality of litigation strategy and settlement strategies for threatened and pending litigation. Also see exclusion of adversarial director from executive session.
The association's attorney does not need to be present for the board to meet and discuss legal issues.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.