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Subject: Exective Session Question
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ShannonM4
(California)

Posts:12


08/17/2019 8:04 PM  
My board has the idea that as long as the association attorney is present, anything can be discussed in Executive.

I have argued that this is not true, since that would bascially nullfy the "authorized topics" restriction as long as they were willing the pay the attorney to sit in (or even to be on the phone).

Can anyone elaborate on what the board can talk to the attorney about in Executive Session?


RichardP13


Posts:0


08/17/2019 8:19 PM  
Anything
MelissaP1
(Alabama)

Posts:8497


08/17/2019 8:25 PM  
Personally I don't know why they need an attorney for every meeting or any. Seems you got some people on the board who have what I call a "Romanticized" view of what a lawyer is/does. Which is going to drain your HOA's finances.


For me, we used a lawyer like you would any paid contractor like an Electrician, plumber, or licensed professional. They are a tool for those times one needs legal actions. Considering they are paid professionals to PRACTICE law.


We also had only one person assigned to converse with the attorney AFTER approved by the board to do so. That person happened to be me. I kept the conversations very limited and only when necessary. Mostly for filing liens and did 1 foreclosure. Threats of any lawsuits wasn't a real need to run to a lawyer. Anyone threatened one I'd tell them the same thing. "Suing your HOA is suing yourself and your neighbors. So I will wait on the paperwork to be filed when your ready. Good day". There's no need to panic over every lawsuit threat.


Keeping a lawyer on "retainer" isn't necessary in all situations. That's another "romantic" notion I see a lot of. Quite frankly we paid our lawyer to do a service we could not do. Which was filing liens, foreclosure, and filing CC&R/Article of Incorporation changes. They usually just charge a certain rate that doesn't require a "retainer". Retainers are more for actual lawsuit cases.


So can the board have the lawyer in executive session? Sure if invited guest and agreed upon. Just don't think it's something they need to do if nothing really is going on legal wise. Threats of lawsuits most of the time is a bunch of hot air or manipulation. I am not going to be running to a lawyer for advice for that.

Former HOA President
KerryL1
(California)

Posts:6606


08/17/2019 9:52 PM  
Shannon, did you not see replies to your previous question on this same topic?? How is this different?? And, again, why in the world is your HOA attorney coming to so many ex. sessions?
SueW6
(Michigan)

Posts:549


08/18/2019 7:25 AM  
Familiarize yourself about how and why Boards can go into Exc Session. Reasons are specific

One legal right to go into Ex. Session is for the board to be advised about legal issues with the lawyer. But those issues must be revealed - not just because he/she is at the meeting.

The main issue is litigation or discussion of legal enforcement of your governing documents.
ShannonM4
(California)

Posts:12


08/18/2019 12:47 PM  
Posted By SueW6 on 08/18/2019 7:25 AM
Familiarize yourself about how and why Boards can go into Exc Session. Reasons are specific

One legal right to go into Ex. Session is for the board to be advised about legal issues with the lawyer. But those issues must be revealed - not just because he/she is at the meeting.

The main issue is litigation or discussion of legal enforcement of your governing documents.




Yes, it was my understanding too, that the reasons had to be limited to litigation (pending, threatened or considering), and the authorized topics defined by law, allowed in Executive Session... if there are laws that define these. In CA, this is defined by CA CC 4935. There is no execption or law that is referenced in connection with 4935 that says "unless your attorney is present, and then these restrictions do not apply".
PaulJ6
(New York)

Posts:259


08/18/2019 3:53 PM  
Posted By MelissaP1 on 08/17/2019 8:25 PM
Personally I don't know why they need an attorney for every meeting or any. Seems you got some people on the board who have what I call a "Romanticized" view of what a lawyer is/does. Which is going to drain your HOA's finances.




Agreed except that the lawyer should not charge for attending board meetings. That is a courtesy that higher-quality lawyers give. For the lawyer, it's time spent solidifying the client relationship and making sure that more legal work comes to the lawyer, so of course time spent at board meetings should be free.


KerryL1
(California)

Posts:6606


08/18/2019 4:45 PM  
I still don't know what Shannon is saying. Is it: If the HOA attorney is at an executive session, the board members may discuss and vote on anything they wish even if the matter is not appropriate in executive session?

Our HOA attorney includes one board meeting and the annual and organization meeting that allows it in his annul retainer of $500. He also includes phone calls. I think that's pretty typical if on retainer, Paul.
RichardP13


Posts:0


08/18/2019 5:08 PM  
Posted By PaulJ6 on 08/18/2019 3:53 PM
Posted By MelissaP1 on 08/17/2019 8:25 PM
Personally I don't know why they need an attorney for every meeting or any. Seems you got some people on the board who have what I call a "Romanticized" view of what a lawyer is/does. Which is going to drain your HOA's finances.




Agreed except that the lawyer should not charge for attending board meetings. That is a courtesy that higher-quality lawyers give. For the lawyer, it's time spent solidifying the client relationship and making sure that more legal work comes to the lawyer, so of course time spent at board meetings should be free.





Are you an HOA attorney?
PaulJ6
(New York)

Posts:259


08/18/2019 5:10 PM  
Posted By KerryL1 on 08/18/2019 4:45 PM
I still don't know what Shannon is saying. Is it: If the HOA attorney is at an executive session, the board members may discuss and vote on anything they wish even if the matter is not appropriate in executive session?

Our HOA attorney includes one board meeting and the annual and organization meeting that allows it in his annul retainer of $500. He also includes phone calls. I think that's pretty typical if on retainer, Paul.




KerryL1- I'm a lawyer and attend dozens of board meetings per year. I know what I'm talking about. However, if you're paying only $500 per year for the things you list plus more, that's nothing- that's less than an hour of work for me- so I wouldn't object to that.

It's very bad form for board members, in executive session, to discuss "anything they wish even if the matter is not appropriate in executive session".
PaulJ6
(New York)

Posts:259


08/18/2019 5:10 PM  
Posted By KerryL1 on 08/18/2019 4:45 PM
I still don't know what Shannon is saying. Is it: If the HOA attorney is at an executive session, the board members may discuss and vote on anything they wish even if the matter is not appropriate in executive session?

Our HOA attorney includes one board meeting and the annual and organization meeting that allows it in his annul retainer of $500. He also includes phone calls. I think that's pretty typical if on retainer, Paul.




KerryL1- I'm a lawyer and attend dozens of board meetings per year. I know what I'm talking about. However, if you're paying only $500 per year for the things you list plus more, that's nothing- that's less than an hour of work for me- so I wouldn't object to that.

It's very bad form for board members, in executive session, to discuss "anything they wish even if the matter is not appropriate in executive session".
KerryL1
(California)

Posts:6606


08/18/2019 5:35 PM  
Paul wrote," It's very bad form for board members, in executive session, to discuss 'anything they wish even if the matter is not appropriate in executive session".[sic]

In CA, it's not legal. Only a very few matters may be discussed in executive session. Perhaps Shannon should ask this attorney the next time s/he attends an executive session why the attorney is permitting the board to discuss matters that should not be brough up in executive session.

Say, Shannon, just checking: your board does know that anything discussed in excutive session must be listed on the agenda two days in advance of the meeting in CA?



PaulJ6
(New York)

Posts:259


08/18/2019 5:58 PM  
Posted By KerryL1 on 08/18/2019 5:35 PM
Paul wrote," It's very bad form for board members, in executive session, to discuss 'anything they wish even if the matter is not appropriate in executive session".[sic]

In CA, it's not legal. Only a very few matters may be discussed in executive session. Perhaps Shannon should ask this attorney the next time s/he attends an executive session why the attorney is permitting the board to discuss matters that should not be brough up in executive session.

Say, Shannon, just checking: your board does know that anything discussed in excutive session must be listed on the agenda two days in advance of the meeting in CA?







KerryL1- looks like you're trying to pick a fight. You'll need to find someone else to fight with. I'm not responding to your posts more, other than to point out that you did not correctly copy the "quote" from my post.
RichardP13


Posts:0


08/18/2019 6:40 PM  
Below is Civil Code §4935 which discuss topics for executive. Notice that (a) says MAY and (b) says SHALL. People have this notion that certain things can't be DISCUSSED, the issue is the actions that are taken that poise the problems.


Civil Code §4935. Executive Session Meetings.

(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665. [Old: Civ. Code §1363.05(b)]

(b) The board shall adjourn to, or meet solely in, executive session to discuss member discipline, if requested by the member who is the subject of the discussion. That member shall be entitled to attend the executive session. [Old: Civ. Code §1363.05(b)]

(c) The board shalll adjourn to, or meet solely in, executive session to discuss a payment plan pursuant to Section 5665. [Old: Civ. Code §1363.05(b)]

(d) The board shall adjourn to, or meet solely in, executive session to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705. [Old: Civ. Code §1367.4(c)(2)]

(e) Any matter discussed in executive session may be generally noted in the minutes of the immediately following meeting that is open to the entire membership. [Old: Civ. Code §1363.05(c)]


Oh, and Paul, your "quote" was copied and pasted word for word.
AugustinD


Posts:1898


08/18/2019 8:01 PM  
Posted By PaulJ6 on 08/18/2019 5:10 PM
I'm a lawyer and attend dozens of board meetings per year. I know what I'm talking about.


So does KerryL1. I have lived in three HOAs/Condos. The HOA attorneys at all of them billed for every hour they spend on HOA matters, including attending board meetings.


PaulJ6
(New York)

Posts:259


08/19/2019 2:45 AM  
Posted By AugustinD on 08/18/2019 8:01 PM
Posted By PaulJ6 on 08/18/2019 5:10 PM
I'm a lawyer and attend dozens of board meetings per year. I know what I'm talking about.


So does KerryL1. I have lived in three HOAs/Condos. The HOA attorneys at all of them billed for every hour they spend on HOA matters, including attending board meetings.






So we’re all seeing different things. That does not mean that any of us is wrong. Next?
NpS
(Pennsylvania)

Posts:3655


08/19/2019 10:17 AM  
Posted By PaulJ6 on 08/18/2019 5:58 PM
KerryL1- looks like you're trying to pick a fight. You'll need to find someone else to fight with. I'm not responding to your posts more, other than to point out that you did not correctly copy the "quote" from my post.


I have read thousands of Kerry's posts over many years. In all that time I spent reading and appreciating the content of Kerry's posts, I never once got the impression that Kerry wanted to pick a fight. Nor did I every read a post from anyone else saying that Kerry was looking for a fight - Until now that is.

So who should I believe? The tried and true contributor. Or the guy who wants everyone to believe that he's been to a lot of meetings, so he knows what he's talking about.

Hmm ... Not even a close call.


Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:259


08/19/2019 10:58 AM  
Posted By NpS on 08/19/2019 10:17 AM
Posted By PaulJ6 on 08/18/2019 5:58 PM
KerryL1- looks like you're trying to pick a fight. You'll need to find someone else to fight with. I'm not responding to your posts more, other than to point out that you did not correctly copy the "quote" from my post.


I have read thousands of Kerry's posts over many years. In all that time I spent reading and appreciating the content of Kerry's posts, I never once got the impression that Kerry wanted to pick a fight. Nor did I every read a post from anyone else saying that Kerry was looking for a fight - Until now that is.

So who should I believe? The tried and true contributor. Or the guy who wants everyone to believe that he's been to a lot of meetings, so he knows what he's talking about.

Hmm ... Not even a close call.





NpS, same goes for you. I have a lot of respect for you and your posts. Let's not pick at each other or disparage each other. You (and KerryL1, and lots of others) are very valued members of this community- let's support one another.
KerryL1
(California)

Posts:6606


08/19/2019 11:02 AM  
Thanks, Richard for posting the statute about HOA executive sessions in CA. It's good for any CA folks to know. I have to pick a fight about, I mean gently correct, your "(e) Any matter discussed in executive session may be generally noted in the minutes of the immediately following meeting that is open to the entire membership."

What I see is "(e) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership." I'll double check later though as I may have it wrong.
NpS
(Pennsylvania)

Posts:3655


08/19/2019 11:29 AM  
Posted By PaulJ6 on 08/19/2019 10:58 AM
NpS, same goes for you. I have a lot of respect for you and your posts. Let's not pick at each other or disparage each other. You (and KerryL1, and lots of others) are very valued members of this community- let's support one another.


You seem to have a knack for deflection. You repeatedly retreat to the same tired old statement of lets all be nice to each other. But that doesn't address the underlying issue that keeps coming up.

No we are not all the same. As I have stated in prior posts, it's very rare that I call someone out. I've called you out more than once. And here I am doing it again in defense of yet another person who IMO has no axe to grind. Why do you think that is?

What I said was descriptive. IMO it was also accurate. If you disagree, then let's stay on topic - not retreat into platitudes.

Maybe a bit of self reflection would be beneficial.

Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:259


08/19/2019 11:38 AM  
Posted By NpS on 08/19/2019 11:29 AM
Posted By PaulJ6 on 08/19/2019 10:58 AM
NpS, same goes for you. I have a lot of respect for you and your posts. Let's not pick at each other or disparage each other. You (and KerryL1, and lots of others) are very valued members of this community- let's support one another.


You seem to have a knack for deflection. You repeatedly retreat to the same tired old statement of lets all be nice to each other. But that doesn't address the underlying issue that keeps coming up.

No we are not all the same. As I have stated in prior posts, it's very rare that I call someone out. I've called you out more than once. And here I am doing it again in defense of yet another person who IMO has no axe to grind. Why do you think that is?

What I said was descriptive. IMO it was also accurate. If you disagree, then let's stay on topic - not retreat into platitudes.

Maybe a bit of self reflection would be beneficial.




NpS, again- feel free to say whatever you want. But I stand by my posts.

And if a lawyer is charging only $500 for several meetings, unlimited phone calls, etc., that's a pretty low-cost lawyer.
PaulJ6
(New York)

Posts:259


08/19/2019 11:47 AM  
NpS, also: there is an error in the French text at the bottom of your posts.
NpS
(Pennsylvania)

Posts:3655


08/19/2019 12:36 PM  
Posted By PaulJ6 on 08/19/2019 11:38 AM
And if a lawyer is charging only $500 for several meetings, unlimited phone calls, etc., that's a pretty low-cost lawyer.


Maybe. Maybe not. Some lawyers offer a fixed price for some limited level of service. Maybe it's to build or maintain a relationship with a changeable BOD. Maybe it's to already have a foot in the door when the larger legal opportunity arises. Maybe it's economically feasible because of cost structure and ability to allocate those costs differently.

On the other hand, lawyers who chase billable hours aren't likely to see things that way. Lawyers who aren't the rainmakers of the firm may not see things that way. Lawyers who bill in 6 minute intervals and charge the client for their time even when no direct contact is made won't see it that way.

But so what. Does that make one person a better lawyer than another? I don't think so.

The first thing for any service provider needs to do is understand the market and the client base. Anyone who compares Amazon to HOA X because they are both corporations has a lot to learn.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3655


08/19/2019 12:37 PM  
Posted By PaulJ6 on 08/19/2019 11:47 AM
NpS, also: there is an error in the French text at the bottom of your posts.


Cool. What's the error?

Sikubali jukumu. Read all posts at your own risk.
RichardP13


Posts:0


08/19/2019 12:49 PM  
It should be shall, it somehow changed when I bolded it.
PaulJ6
(New York)

Posts:259


08/19/2019 12:53 PM  
Posted By NpS on 08/19/2019 12:36 PM
Posted By PaulJ6 on 08/19/2019 11:38 AM
And if a lawyer is charging only $500 for several meetings, unlimited phone calls, etc., that's a pretty low-cost lawyer.


Maybe. Maybe not. Some lawyers offer a fixed price for some limited level of service. Maybe it's to build or maintain a relationship with a changeable BOD. Maybe it's to already have a foot in the door when the larger legal opportunity arises. Maybe it's economically feasible because of cost structure and ability to allocate those costs differently.

On the other hand, lawyers who chase billable hours aren't likely to see things that way. Lawyers who aren't the rainmakers of the firm may not see things that way. Lawyers who bill in 6 minute intervals and charge the client for their time even when no direct contact is made won't see it that way.

But so what. Does that make one person a better lawyer than another? I don't think so.

The first thing for any service provider needs to do is understand the market and the client base. Anyone who compares Amazon to HOA X because they are both corporations has a lot to learn.




NpS, here's how it goes when I post:

"I'm a lawyer and see X, Y and Z in my practice."

If what I see in my practice (20+ years doing corporate law, although NOT homeowners' association law), then the responses are:

1. "Well, I see A, B and C. You're wrong."

2. "You're not a lawyer."

3. "No real lawyer would post online."

It's always the same thing.

So disregard what I say if you want- you're welcome to. Or see my posts for what they are: someone who's been practicing for 20+ years, including at firms in the top 10 AmLaw profits per partner ranking. It's definitely not the same field or type of practice as a typical homeowners' association lawyer, I'm the first to concede, so that's a key reason why what I see in my practice isn't what a lot of people who deal with HOA lawyers see.
PaulJ6
(New York)

Posts:259


08/19/2019 12:56 PM  
Posted By NpS on 08/19/2019 12:37 PM
Posted By PaulJ6 on 08/19/2019 11:47 AM
NpS, also: there is an error in the French text at the bottom of your posts.


Cool. What's the error?




The last word should be plural.

Yes, I know, I'll receive an ad hominem attack for pointing this out, and I'll receive all sorts of denials that I have ever spoken French.
RichardP13


Posts:0


08/19/2019 12:56 PM  
Posted By KerryL1 on 08/19/2019 11:02 AM
Thanks, Richard for posting the statute about HOA executive sessions in CA. It's good for any CA folks to know. I have to pick a fight about, I mean gently correct, your "(e) Any matter discussed in executive session may be generally noted in the minutes of the immediately following meeting that is open to the entire membership."

What I see is "(e) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership." I'll double check later though as I may have it wrong.



It should be shall, but the point was that boards don't put into the open session minutes a general description of what was handled in executive session. The same thing happened with Action Without a Meeting for the very same reason. The rest of the country can have those meetings, California can't.
PaulJ6
(New York)

Posts:259


08/19/2019 3:16 PM  
EDITED TO FIX MISSING WORDS

NpS, here's how it goes when I post:

"I'm a lawyer and see X, Y and Z in my practice."

If what I see in my practice (20+ years doing corporate law, although NOT homeowners' association law) [EDITED TO ADD] differs from what others see in their HOAs [END OF ADDITION], then the responses are:

1. "Well, I see A, B and C. You're wrong."

2. "You're not a lawyer."

3. "No real lawyer would post online."

It's always the same thing.

So disregard what I say if you want- you're welcome to. Or see my posts for what they are: someone who's been practicing for 20+ years, including at firms in the top 10 AmLaw profits per partner ranking. It's definitely not the same field or type of practice as a typical homeowners' association lawyer, I'm the first to concede, so that's a key reason why what I see in my practice isn't what a lot of people who deal with HOA lawyers see.

[EDITED TO ADD] NpS, you can either (1) constantly find offense in what someone else says and constantly [try to] call the person out, or (2) you can just assume the best with the person and just ignore the person and let things go. You might wish to consider trying (2) instead of (1). Life's too short to fight online.
KerryL1
(California)

Posts:6606


08/19/2019 3:30 PM  
NpS has been a sterling citizen of this forum and I really missed her/him when absent for a long period. Advice is helpful, respectful, relevant and knowledgeable. And it pertains to HOA organizational structures, not for profit corporations, sports teams, or theater groups.

I didn't know French, but like to understand languages. Why would the word "risk" need to be plural? Or does "responsabilite" not mean risk?

Thanks, Richard. For Shannon, it's also import to know that the general activities of executive session must be in the next open meeting minutes--no specific like names.
PaulJ6
(New York)

Posts:259


08/19/2019 4:03 PM  
Posted By KerryL1 on 08/19/2019 3:30 PM
NpS has been a sterling citizen of this forum...
I didn't know French, but like to understand languages. Why would the word "risk" need to be plural? Or does "responsabilite" not mean risk?





Yes, I've paid NpS numerous compliments as well.

"Toutes" is plural and thus "responsabilites" needs to be plural.
PaulJ6
(New York)

Posts:259


08/19/2019 5:02 PM  
Posted By NpS on 08/19/2019 12:36 PM
Posted By PaulJ6 on 08/19/2019 11:38 AM
And if a lawyer is charging only $500 for several meetings, unlimited phone calls, etc., that's a pretty low-cost lawyer.


Maybe. Maybe not.




NpS, $500 for that amount of work IS low-cost. Period. It doesn't matter what the reason for charging that low price is.

The average hourly rate for a lawyer to do real estate work is $304 per hour. Source: https://www.lawyersmutualnc.com/blog/top-10-lawyer-hourly-rates-by-city
This source is a survey of users of Clio, a software program for small firms. So if you consider that small firms charge less, in general, than larger firms, then the actual hourly rate for real estate work is likely well above $304.

So $500 for several hours of work is well below the $304 reported average (as reported by small-firm lawyers) and likely even further below the average for all lawyers.
NpS
(Pennsylvania)

Posts:3655


08/19/2019 5:24 PM  
Posted By PaulJ6 on 08/19/2019 3:16 PM
NpS, you can either (1) constantly find offense in what someone else says and constantly [try to] call the person out, or (2) you can just assume the best with the person and just ignore the person and let things go. You might wish to consider trying (2) instead of (1). Life's too short to fight online.


Tagline changed. Not sure if it's correct since I don't speak a lick of French. I just like the way it sounds.

Kerry, thanks for your kind words.

Paul, you and I have traveled this path before. Here, my statements were in reaction to something you said about Kerry. Should I have ignored your callout against Kerry when there was no evidence to support it? Should I have assumed the best even though you seemed to demonstrate a different intent? Should I accept your end recommendation that we should all just get along even though it was you who initiated the triggering event?

Do you even know what I'm calling you out on? No it's not that you say X and I say Y. Can you figure it out?

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3655


08/19/2019 5:51 PM  
Posted By PaulJ6 on 08/19/2019 5:02 PM
Posted By NpS on 08/19/2019 12:36 PM
Posted By PaulJ6 on 08/19/2019 11:38 AM
And if a lawyer is charging only $500 for several meetings, unlimited phone calls, etc., that's a pretty low-cost lawyer.


Maybe. Maybe not.


NpS, $500 for that amount of work IS low-cost. Period. It doesn't matter what the reason for charging that low price is.

The average hourly rate for a lawyer to do real estate work is $304 per hour. Source: https://www.lawyersmutualnc.com/blog/top-10-lawyer-hourly-rates-by-city
This source is a survey of users of Clio, a software program for small firms. So if you consider that small firms charge less, in general, than larger firms, then the actual hourly rate for real estate work is likely well above $304.

So $500 for several hours of work is well below the $304 reported average (as reported by small-firm lawyers) and likely even further below the average for all lawyers.


Interesting. In my response after the words "Maybe. Maybe not", I went into a discussion of flat rate charges for basic services with the opportunity to charge more for higher-end services. When I looked at your link, I saw that it was largely a discussion of hourly vs flat-rate billing. While hourly seems to be holding in some markets and in some legal areas, flat-rate is significant in others. Not surprisingly, HOA law is not listed as a specialty. While RE law is listed, I question whether most RE lawyers are proficient in HOA law.

Your choice of the term "low cost lawyer" together with your big lawfirm speak seems to miss my point entirely. The writer of the article seems to have understood what I was getting at.

If you've never run your own business, you might not get where I am coming from. But for those who have been there, I don't think the phrase "low cost" anything would be an appropriate one-size-fits-all label to apply.


Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:259


08/19/2019 6:58 PM  
NpS, you made another mistake in your French.

“Je se” makes no sense. It’s “Je me”.

As per your last post, you’ll go on and on even when black-and-white facts are presented to you.

Best wishes. Again, please feel free to attack and criticize as much as you want, and please feel free to continue trying to claim moral superiority. Absolutely fine by me. But I won’t be responding.
NpS
(Pennsylvania)

Posts:3655


08/19/2019 7:47 PM  
Posted By PaulJ6 on 08/19/2019 6:58 PM
Absolutely fine by me. But I won’t be responding.


You've said that before too ...

Sikubali jukumu. Read all posts at your own risk.
RichardP13


Posts:0


08/19/2019 8:02 PM  
Posted By KerryL1 on 08/18/2019 4:45 PM
Our HOA attorney includes one board meeting and the annual and organization meeting that allows it in his annul retainer of $500. He also includes phone calls.

Sorry, I wasn't born yesterday and I get to pay lawyers minimized invoices. Every one I have done and this goes back 10 years, the billing period is 15 minutes. Hourly prices are $350.00 and up. That will get you about 6 phone calls at 15 minutes apiece.

I don't like attorney, actually I hate them. Not all of them, but pretty much 99.9% of them. Paul, you and my friend might be the only exceptions. I am being sued by my former boss, who claims to be a lawyer, but has no ethics. Matter of fact, he is as big a liar as his president. In order to defend myself, I have to hire an attorney at a cost of $30K.

Shannon, don't worry about what people say in Executive Session or what a Board does when their attorney. It ain't worth losing sleep over. What is important is that the Board's action are published, in general, for the members to see. I would be the first to admit that topics outside of the "five" are discussed. Sue me and sue the Board, BUT the actions of any Board that I have ever managed or ever presided over has ALWAYS been minutes in the minutes. I would never lose a minute of sleep wondering.
PaulJ6
(New York)

Posts:259


08/20/2019 5:11 AM  
Thanks, KerryL1, I think highly of you as well. I also do think highly of NpS and the other regulars on this board. It's a strong and helpful community.
KerryL1
(California)

Posts:6606


08/20/2019 1:02 PM  
I sort of missed your last post, Richard, till now. Just checked our contract.

We've retained two different law firms over about a 7 years period. I was on the board and we interviewed one or more attorneys from thee-four firms —all of which had a major HOA component--each time for about one hour apiece. They all offered just about the same services for a annual retainer of $500. It includes no-charge phone calls. Obviously if the matter involves research or other time spent, we’ll be charged: Partner’s time, $250/hour; Associate’s time, $225/hr; law clerks/paralegals, $125/hr. They charge by 20 minute increments. There’s also a small list of recordation, fees, etc.

The retainer includes the annual meeting and one board meeting. As noted elsewhere, the GC usually comes to the short board meeting that precedes the annual meeting and stays for the very brief organizational meeting that follows the annual meeting. So the retainer does not include “several” meetings. While ballots are being tabulated, he fields questions from the Board and Owners.


No HOA in CA or or other states with lots of HOA statutes shoul ever use a real estate attorney.
RichardP13


Posts:0


08/20/2019 1:38 PM  
I'll let others respond. I am laughing too hard.
PaulJ6
(New York)

Posts:259


08/20/2019 2:22 PM  
KerryL1, I think that you've handled legal matters very well.

I agree with you that HOAs shouldn't use real estate lawyers; that was the closest category to HOA law that I could find. I think that you've done a good job in selecting counsel.
RichardP13


Posts:0


08/20/2019 3:26 PM  
Sorry, this was my post, not Kerry's.

Sorry, I wasn't born yesterday and I get to pay lawyers minimized invoices. Every one I have done and this goes back 10 years, the billing period is 15 minutes. Hourly prices are $350.00 and up. That will get you about 6 phone calls at 15 minutes apiece.

I don't like attorney, actually I hate them. Not all of them, but pretty much 99.9% of them. Paul, you and my friend might be the only exceptions. I am being sued by my former boss, who claims to be a lawyer, but has no ethics. Matter of fact, he is as big a liar as his president. In order to defend myself, I have to hire an attorney at a cost of $30K.

Shannon, don't worry about what people say in Executive Session or what a Board does when their attorney. It ain't worth losing sleep over. What is important is that the Board's action are published, in general, for the members to see. I would be the first to admit that topics outside of the "five" are discussed. Sue me and sue the Board, BUT the actions of any Board that I have ever managed or ever presided over has ALWAYS been minutes in the minutes. I would never lose a minute of sleep wondering.
KerryL1
(California)

Posts:6606


08/20/2019 5:15 PM  
Your posts are confusing, Richard. Are you saying I'm fabricating what we're paying our HOA GC, which is line with a total of 6-7 local firms we interviewed for the same services? Why would I do that?

We do, btw, have a collections legal firm and that's an entirely different matter.
RichardP13


Posts:0


08/20/2019 5:56 PM  
Nope, it's just I have the same number and the lowest price for a partner's hourly rate is $325.00 per hour.

The law firm my association had employed ran up a tab of over $20K going after me, on the orders of the MC. This is over a period of 2 1/2 years. 6 months of it was while I was president. They held them until I left. I am afraid MC's and attorneys don't like others knowing as much or more than them. They feel threaten and they have the ability to use your money against you.
PaulJ6
(New York)

Posts:259


08/21/2019 4:56 AM  
Posted By RichardP13 on 08/20/2019 5:56 PM
Nope, it's just I have the same number and the lowest price for a partner's hourly rate is $325.00 per hour.

The law firm my association had employed ran up a tab of over $20K going after me, on the orders of the MC. This is over a period of 2 1/2 years. 6 months of it was while I was president. They held them until I left. I am afraid MC's and attorneys don't like others knowing as much or more than them. They feel threaten and they have the ability to use your money against you.




Sorry to hear that, although I agree with you.

Just curious why the HOA's lawyer followed instructions of the MC; wouldn't the lawyer need to follow instructions from the HOA's board or president? You may be able to file a claim with the state bar if the HOA's lawyer violated rules of professional conduct in that situation, if you want to.

(To others, if you're going to respond, 'you're a lawyer, you should know this', 'you're a lawyer and so why are you posting online,' 'that's an easy question', please consider if doing so is the best use of time.)
RichardP13


Posts:0


08/21/2019 8:50 AM  
The State Bar? That's a joke. My former boss, who I am in a legal battle with, was brought up on co-mingling charges. Caught him red handed using client trust funds to fund his management company. The State Bar laughed at the party who turned him in and even gave back the evidence and the name of the party who turned him in.

I have to assume you aren't an HOA attorney and don't know what really goes on in this industry. You might be shocked to say the least.
PaulJ6
(New York)

Posts:259


08/21/2019 9:46 AM  
Posted By RichardP13 on 08/21/2019 8:50 AM
The State Bar? That's a joke. My former boss, who I am in a legal battle with, was brought up on co-mingling charges. Caught him red handed using client trust funds to fund his management company. The State Bar laughed at the party who turned him in and even gave back the evidence and the name of the party who turned him in.

I have to assume you aren't an HOA attorney and don't know what really goes on in this industry. You might be shocked to say the least.




Correct. I am not a HOA attorney.

From the limited things I've seen in the industry, I'm troubled, though, so, once again, I agree with you.

Yes, NpS and others will blast me for saying this, but the level of professionalism that I have seen among HOA attorneys, in my experience, is lower than the level of professionalism than I have seen in AmLaw 10 law firms.
JZ2
(Florida)

Posts:52


08/21/2019 1:14 PM  
Pretty good summary of executive session requirements in CA here:

https://www.davis-stirling.com/HOME/Executive-Session-Defined
RichardP13


Posts:0


08/21/2019 2:06 PM  
I don't think anyone is disputing what an executive session is used for. The question is what the Board and the attorney talked about that is causing the OP heartburn. The only issue would be what actions were taken from those discussions. PERIOD, END of STORY.
JohnC46
(South Carolina)

Posts:8647


08/21/2019 2:09 PM  
Posted By RichardP13 on 08/21/2019 2:06 PM
I don't think anyone is disputing what an executive session is used for. The question is what the Board and the attorney talked about that is causing the OP heartburn. The only issue would be what actions were taken from those discussions. PERIOD, END of STORY.




Yes, they can talk all they want about anyone or anything. The issue would be what actions were taken.

Like minutes. A meeting could go on for hours and the final minutes be less than a page especially if no action was taken.
KerryL1
(California)

Posts:6606


08/21/2019 3:00 PM  
Incorrect for CA, JohnC.

Way above, Richard cites the actual CA statue on this point. The ONLY matters that may be discussed in are in it. Among the matters, an agenda posted two days before the ES MUST state in general terms, i.e., "Personnel Issue," which, if any, are under discussion. Anything else, if a quorum of the board is present MUST be discussed in open meetings in CA.

In those cases , the items also must be listed on a posted agenda 4 days in advance of the meeting and must be specific.

You are incorrectly telling Shannon that the board can discuss anything it wishes in ES. She seems confused enough. I still don't know why she simply does'nt ask the attorney at the meeting what is legal to discuss.
RichardP13


Posts:0


08/21/2019 4:00 PM  
Posted By KerryL1 on 08/21/2019 3:00 PM
Incorrect for CA, JohnC.

Way above, Richard cites the actual CA statue on this point. The ONLY matters that may be discussed in are in it. Among the matters, an agenda posted two days before the ES MUST state in general terms, i.e., "Personnel Issue," which, if any, are under discussion. Anything else, if a quorum of the board is present MUST be discussed in open meetings in CA.

In those cases , the items also must be listed on a posted agenda 4 days in advance of the meeting and must be specific.

You are incorrectly telling Shannon that the board can discuss anything it wishes in ES. She seems confused enough. I still don't know why she simply does'nt ask the attorney at the meeting what is legal to discuss.



Show me exactly where it states that!

You need to learn HOW to read legalese.

1. So, (a) says they may, don't have to, but may meet in executive session
2. (b) says you shall discuss member discipline, essentially saying not to be done in open session.
3. (c) says you shall meet in ES to discuss a payment plan, but you know what, it doesn't say where you vote on it?
4. (d) says you decide in ES whether to foreclosure on a lien, where do you discuss it.

Please don't tell me your Board with you on never discussed anything outside of the five topics in ES. The issue is whether or not actions were taken. I know for a fact, with the association's attorney present, the 2009 budget was discussed and approved in ES. This was with the state's largest HOA law firm present.
PaulJ6
(New York)

Posts:259


08/21/2019 4:35 PM  
It’s certainly improper to approve a budget in Executive Session. And people wonder why I have a dim view of HOA lawyers?
KerryL1
(California)

Posts:6606


08/21/2019 5:30 PM  
For the 12 years I was on the Board, Richard, we did not discuss or vote on items that are not on the list you submitted way above. To generalize from the HOA boards you've been on and observed to all CA HOA boards is lousy science. Worse is your example of one HOA board 10 years ago.

I actually have noticed over time, Richard, that you do make some reading comprehension errors. Your 1 (a) directly above is a fine example:

1. "(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665."

In THIS usage, "may" means that board is permitted to or may choose to meet in secret, i.e., in executive session re: these topics if they wish. But they are not required to meet in in ES for them.

Richard cited: (b) "The board shall adjourn to, or meet solely in, executive session to discuss member discipline, if requested by the member who is the subject of the discussion. That member shall be entitled to attend the executive session. "

(c) "The board shalll adjourn to, or meet solely in, executive session to discuss a payment plan pursuant to Section 5665."

(d) "The board shall adjourn to, or meet solely in, executive session to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705."

b, c & d are obvious "musts." BUT, note that in b, the board meets in ES "if requested by the member who is the subject of the discussion."

There's no big legalese lesson here. You can easily find the day's notice needed for posting, so I will not look it up for you.

Paul, I can't help but wonder your reasons for so much criticism of HOA lawyers. How does it help posters here? How does it help Shannon, the OP?
RichardP13


Posts:0


08/21/2019 6:04 PM  
It is not lousy science, it is from personal experience, a lot of personal experience. I know you don't like hearing this, but this is what I do for a living. I don't deal with it on monthly basis, but on a daily basis. For five years, I attended 15 Board meetings monthly.

I have no idea what you wrote afterward. But, let's take (b), because California requires due process before a homeowner is fined or has certain rights suspended, homeowners are given notice of a hearing that sets asides time to hear the case against them. It is recommended, not required that the hearing be hearing in an executive session setting. In this case, the member is NOT requesting the meeting.

Because your attorney tells your something, don't always assume they are right. You have to do your own due diligence.

Again, my criticism of HOA attorneys comes from long personal experience.
RichardP13


Posts:0


08/21/2019 6:05 PM  
Again, I would ask, exactly what did the attorney say that gave the OP heartburn?
KerryL1
(California)

Posts:6606


08/21/2019 6:14 PM  
"It is recommended, not required that the hearing be hearing in an executive session setting."Right, Richard, it may be in ES if requested by the owner per your (b) above if correctly cited. 'Atta boy.

RichardP13


Posts:0


08/21/2019 6:32 PM  
Posted By KerryL1 on 08/21/2019 6:14 PM
"It is recommended, not required that the hearing be hearing in an executive session setting."Right, Richard, it may be in ES if requested by the owner per your (b) above if correctly cited. 'Atta boy.




UNBELIEVABLE!
ShannonM4
(California)

Posts:12


08/22/2019 2:44 PM  
Posted By KerryL1 on 08/17/2019 9:52 PM
Shannon, did you not see replies to your previous question on this same topic?? How is this different?? And, again, why in the world is your HOA attorney coming to so many ex. sessions?




Because they think if he is there, somehow it lifts teh restrictions of CA Civil code 4935, which limits what can be talked about in Executive.
They then procedd to use Executive session to shit-talk other board members, use intimidating tactics and bullying to break them down and bascially absue them.
KerryL1
(California)

Posts:6606


08/22/2019 3:54 PM  
How many are on your board, Shannon?

Per your contract with your HOA attorney, how much is your HOA paying him for these executive session visits?

How many executive sessions has the attorney attended this year? One a month? Or?

Can you ask him a the next time he comes if the board is proceeding legally by discussing non-ex session matters in ex. session?

Btw what size is your HOA? I.e., how many homes?
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