Reader Questions – Who Does the HOA Attorney Represent?Sep 26, 2022
By Kelly G. Richardson, Esq. CCAL
Dear Mr. Richardson: Does the HOA attorney represent the board or the HOA? If there is a conflict in different CC&Rs sections regarding HOA or homeowner's responsibility to maintain an item and the HOA attorney is consulted who is their client? P.G., Huntington Beach.
Dear Mr. Richardson: Can the general counsel of an HOA represent one HOA member against another HOA member on a personal matter, unrelated to the rules, regulations or CC&Rs of that HOA? In doing so, the attorney utilized information and witness testimony from the management company which arguably would not have been available for other community members. R.S., Rancho Mirage.
Dear P.G. and R.S.: The HOA attorney represents the HOA, not the board or the president, although the HOA speaks and acts through its board. HOA attorneys should not be simultaneously advising the HOA and individual HOA members, the management company, or any entities doing business with the HOA. The HOA’s lawyer should be able to be completely loyal to the HOA at all times. When the occasional dispute arises between the HOA and its management, the lawyer must only consider the HOA’s interests, even though they know many of their client referrals come from managers. Bluntly, that is where the ethical rubber meets the road, and most reputable companies recognize that and do not hold it against the attorney. Sometimes, if the HOA is sued along with its manager or directors, the HOA’s attorney will defend them along with the HOA. However, aside from those situations, the HOA attorney should only represent and advise the HOA.
Dear Kelly: Recently our Board decided to restate the CCRs and bylaws, and drafts were sent to owners. Management announced that any questions to the attorney were to be submitted four days prior to the ‘Town Meeting’. Owners would be not be allowed to ask any questions nor make any comments at the meeting.
The draft documents were boilerplate and half of the items added were not applicable to our type of building or not applicable to our HOA. During the ‘Town Meeting’ it was obvious that the board was surprised and questioned why the attorney had included the irrelevant sections. At the ‘Town Hall’ the attorney refused to address any questions directed to him and said that such questions were covered by attorney-client privilege.
It was my understanding that the attorney worked for the HOA not the board members as individuals. Please clarify the attorney client privilege between the HOA attorney and the HOA members. Thank you, H.S., San Diego
Dear H.S.: Is this HOA forgetting that the purpose of a town hall meeting is to answer questions, take suggestions, and gain member support for the documents? Without the lawyer answering questions, how do the members obtain any confidence in voting for the proposed documents? As to the “privilege” claim, I disagree – you are members and the lawyer is not advising you each individually but is explaining the rationale as to how the draft new governing documents are in the association’s best interests (which is different than your individual interests). “Town hall” meetings are designed to provide members information and foster discussion. Some wires are crossed here and I hope your community gets those wires straightened out.
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