Reader Questions – Who Contacts the Attorney?Nov 14, 2022
By Kelly G. Richardson, Esq. CCAL
Dear Mr. Richardson: Several years ago the board asked for an explanation regarding our Declaration. The board wanted to know its authority regarding certain issues within the development. The association's attorney did an analysis of our CC&Rs and issued an answer. Since this analysis and resulting letter is of a general nature regarding our association, is it considered attorney-client correspondence and privileged communication with the board only? Do the members have a right to see such clarifying communications, since the attorney was providing this information to the board and the manager, as the association's attorney. J.H., Manteca.
Kelly: I swear you must have a direct line to our HOA! It seems every week you shed light on issues our board mishandled. During a disastrous modification of the CC&R/By-laws, the board refused to give us a redline, have a town hall meeting, or simply identify the changes, so I called the HOA attorney. The board sent out a letter to all owners stating the attorney represented the board and that owners were not allowed to speak to the attorney. What is your definition of the “HOA?” If it is the members AND the board, our board says the attorneys exclusively represent the board. Really appreciate all your insight. J.N., Irvine
Dear J.H. and J.N: The HOA lawyer’s client is the association, not the board or its members. So, opinions are presented to the association, which speaks and acts through its board of directors. The attorney-client privilege is between the association and the attorney, not the members and the attorney. This was recognized in the 2000 appellate decision of Smith v. Laguna Del Sur Villas, which held that the individual members did not have a right to access the HOA’s attorney opinions. So, individual homeowners cannot force the HOA to share the attorney’s opinions or recommendations.
However, there are times in which the attorney provides opinions clarifying the rights and responsibilities of all homeowners, which opinions may be helpful to everyone to review. In some circumstances, I find myself writing opinions to the board knowing that the board, in its service to its community, plans on sharing my opinions with the membership at large. I do agree that sometimes, even though the board could hold the attorney's input as confidential, the attorney's opinions are helpful to the entire community and should be shared.
A similar circumstance happens during governing document rewrite projects, such as in J.N.’s association. During the attorney’s work on creating new governing documents (CC&R’s and bylaws) for the HOA, if the attorney is barred by the board from explaining them to the members, how could the documents be approved by the members?
The attorney-client privilege protects associations from revealing confidential advice regarding disputes and claims, but at other times the advice is more of a general nature and transparency is helpful to the association and can it helps the community understand legal principles.
There is no bright line rule here. Associations and their counsel should discuss when the advice is helpful to everyone and can be shared.
Also, not everyone should be able to contact the attorney. Usually, the manager and a designated director are my HOA points of contact– but I prefer to copy the entire board with my advice.