I recently received a call from a client asking me to send over one of my attorneys for a board meeting that night. When I asked what the purpose would be for the attorney to attend, the answer was: “So we can hold a closed meeting of course!”
Well there are a few problems with this request. Boards can close their meetings if they are meeting with the association’s attorney regarding pending or proposed litigation when the meeting is held for the purpose of seeking or rendering legal advice. In other words, you can’t ask your association attorney to sit and listen to regular board discussion on a variety of matters for the sole purpose of closing the meeting to your members.
Meetings of a committee to take final action on behalf of the board or make recommendations to the board regarding the association budget also must be held in an open forum unless the attorney is present to discuss proposed or pending litigation and legal advice is being sought or rendered. Meetings of a committee that does not take final action on behalf of the board or make recommendations to the board regarding the association budget can be closed to member participation only if the bylaws of the association provide for same.
Even when your board or committee is within its rights to close a meeting to member participation, notice for such meeting must still be posted with an agenda line item indicating that a closed meeting to discuss proposed or pending litigation with the attorney will take place. There are legitimate reasons to close a meeting with counsel to protect legal strategy and preserve the attorney-client privilege. On the other hand, the membership’s right to be informed about the business of the association compels as much transparency as necessary to balance and protect both goals.