Can a Single Member of a Multimember Board Waive an Institution’s Privilege?

March 2, 2022

Lawyers sometimes represent institutions governed by multimember boards. Those members frequently receive privileged communications from the institution’s lawyers. Under the majority rule, an institution’s upper and even middle-level management trusted to handle privileged communications can waive the institution’s privilege if they are acting in its interest. Is the same true of an individual board member?

In Breuder v. Board of Trustees, No. 15 CV 9323, 2021 U.S. Dist. LEXIS 244867 (N.D. Ill. Dec. 23, 2021), a college’s former president suing for wrongful termination argued that a member of the college’s board of trustees waived the college’s privilege by disclosing a privileged communication to an outsider. The court rejected plaintiff’s argument, agreeing with the college that the individual “did not have the authority to unilaterally waive the Board’s privilege without the approval of the full Board” – so her disclosure did not waive the college’s privilege. Id. at *14. All or nearly all courts follow this majority rule, which recognizes that a board controls the institution’s privilege collectively, and must act collectively to waive it.

But one might wonder how this story plays out – because the outsider already has the privileged communication. Presumably a court’s non-waiver finding in this scenario precludes use of the privileged communication during depositions and denial of its admissibility at trial. And because the unauthorized disclosure has occurred in a non-judicial setting, there generally is no subject matter waiver risk.