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Subject: If a Lawyer represents an HOA, as well as the Management company
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NicoleS10
(California)

Posts:42


06/30/2019 9:35 AM  
If a Lawyer represents an HOA, as well as the Management company that HOA has hired, would he have to divulge that fact, if asked by an HOA Board member?
MarkW18
(Florida)

Posts:48


06/30/2019 10:06 AM  
The answer is yes.

BUT, the HOA should NEVER have the same attorney that represents the management company, NEVER
NicoleS10
(California)

Posts:42


06/30/2019 10:26 AM  
Posted By MarkW18 on 06/30/2019 10:06 AM
The answer is yes.

BUT, the HOA should NEVER have the same attorney that represents the management company, NEVER




Yes... was not aware of that until recently.
I have no idea if that is the case for my HOA, but I intend to find out.
PatJ1
(North Carolina)

Posts:93


06/30/2019 10:40 AM  
Even a firm who represents any MC should point you to a firm that doesn't.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
AugustinD


Posts:1886


06/30/2019 12:16 PM  
In these circumstances, the attorney or law firm is required to obtain "informed written consent from each client." You could make a records request of your HOA for a copy of this consent. See http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_1.7-Exec_Summary-Redline.pdf . I am betting this informed consent is in fact on record.

I think it is better to make such a request when one is not on the Board. Either way, one should be ready for a bullying board to retaliate.

I agree with PatJ1 . I would add that, where I am (which is not California), law firms flat-out refuse to take as a client anyone who has any connection to any of their current clients. The first thing law firms do is do a check of conflicts of interests with present clients and the proposed new client.
PaulJ6
(New York)

Posts:184


06/30/2019 2:54 PM  
It's a conflict of interest for a lawyer to represent both the HOA and the management company. Ethically, a lawyer would need both the HOA and the management company to sign a conflict waiver. If either does not, then the lawyer could be forced to withdraw from representing either of them if s/he is called out.

Further, if the attorney gives advice to one but discloses that advice to the other, then the advice would not be subject to attorney-client privilege and in litigation, anyone else involved in the litigation could try to obtain all relevant emails, etc. containing advice. That would be a disaster.
JohnC46
(South Carolina)

Posts:8550


06/30/2019 4:44 PM  
When we hired our MC, we learned that he also used the same attorney our HOA does. When we asked our attorney, he told us that if any conflict arose between us, he would notify both parties and let them decide.

We decided the only conflict would be if we had any legal actions against the MC and as we did not expect any, we went ahead.

Rather cavalier, but we have never had a legal issue with anyone except a fellow owner so I think we made the right decision.

PaulJ6
(New York)

Posts:184


06/30/2019 5:15 PM  
Posted By JohnC46 on 06/30/2019 4:44 PM
When we hired our MC, we learned that he also used the same attorney our HOA does. When we asked our attorney, he told us that if any conflict arose between us, he would notify both parties and let them decide.

We decided the only conflict would be if we had any legal actions against the MC and as we did not expect any, we went ahead.

Rather cavalier, but we have never had a legal issue with anyone except a fellow owner so I think we made the right decision.





It's inherently a conflict of interest to be representing both the HOA and the management company, even if there is no contentious disagreement at a particular time. I hope that the lawyer gave you a conflict waiver to sign at the time that he began representing the HOA. If not, that's potentially an ethical violation.
NpS
(Pennsylvania)

Posts:3572


06/30/2019 10:34 PM  
Posted By PaulJ6 on 06/30/2019 5:15 PM
Posted By JohnC46 on 06/30/2019 4:44 PM
When we hired our MC, we learned that he also used the same attorney our HOA does. When we asked our attorney, he told us that if any conflict arose between us, he would notify both parties and let them decide.

We decided the only conflict would be if we had any legal actions against the MC and as we did not expect any, we went ahead.

Rather cavalier, but we have never had a legal issue with anyone except a fellow owner so I think we made the right decision.



It's inherently a conflict of interest to be representing both the HOA and the management company, even if there is no contentious disagreement at a particular time. I hope that the lawyer gave you a conflict waiver to sign at the time that he began representing the HOA. If not, that's potentially an ethical violation.



John's situation might be interesting to talk about where Lawyer represents HOA and MC individually and then HOA hires MC. What happens when a dispute between HOA and MC arises? Does lawyer abandon one client and represent the other or abandon both or attempt to represent both? Really messy stuff with lots of potential ethical consequences.

But then again, I don't see the benefit of chasing guesses when it ought to be easy enough to find out - Ask HOA lawyer if she represents MC. It would be an ethical violation for lawyer to answer falsely.
The answer must be yes or no.

Sikubali jukumu. Read all posts at your own risk.
SamE2
(New Jersey)

Posts:133


07/01/2019 4:14 AM  
A management company is a vendor for the HOA. If the management company an HOA can't use the same attorney does that also apply to other vendors? Should we use a different attorney than the company that takes care of our swimming pool? Obviously if we were in a dispute with the management company they both couldn't use the same firm but what is the problem if the HOA is using the attorney to change the bylaws or collect money?
NpS
(Pennsylvania)

Posts:3572


07/01/2019 7:20 AM  
Posted By SamE2 on 07/01/2019 4:14 AM
A management company is a vendor for the HOA. If the management company an HOA can't use the same attorney does that also apply to other vendors? Should we use a different attorney than the company that takes care of our swimming pool? Obviously if we were in a dispute with the management company they both couldn't use the same firm but what is the problem if the HOA is using the attorney to change the bylaws or collect money?



If the MC is managing funds for the HOA and in some other regards, the MC is a fiduciary to the HOA. That's unlike most of your other vendor relationships.

An attorney is a fiduciary to all clients.

It can get really messy when those fiduciary responsibilities overlap in different ways.

Larger law firms that specialize in HOA law will often have lawyers who only represent HOAs and other lawyers who only represent MCs.

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

Posts:184


07/01/2019 8:51 AM  
I deal with this situation every now and then, as a lawyer.

If there is a conflict of interest--which occurs if a lawyer represents both parties to a contract or transaction--then the conflict must be disclosed to both clients. Both clients would usually be given the right to discuss the conflict with other lawyers of their choice so that they could make an informed decision as to waiving the conflict or not. The lawyer usually would ask both clients to sign a conflict waiver, which describes the conflict, the drawbacks from using the lawyer in that situation and what happens if the situation becomes adversarial. If the situation becomes adversarial, then the lawyer can withdraw from representing one, usually. If a lawyer proceeds in a conflict situation, adversarial or not, and hasn't raised the conflict of interest to both clients and obtained a waiver from both clients, then the lawyer can be forced to withdraw from representing at least one of them, and the lawyer can be subject to sanction from the state bar, as an ethics violation.

A lot of people on this board seem to jump to claim that lawyers are unethical, but in my experience, the procedure above is followed to the letter. I've never seen any lawyer not follow it, other than one situation where I saw another lawyer miss that there was a conflict, and he immediately withdrew when he was called out on.

If a lawyer does not follow the procedure in the second paragraph of this post, that's a red flag and I would find another lawyer.
SheilaJ1
(South Carolina)

Posts:110


07/01/2019 1:08 PM  
Posted By PaulJ6 on 07/01/2019 8:51 AM
I deal with this situation every now and then, as a lawyer.

If there is a conflict of interest--which occurs if a lawyer represents both parties to a contract or transaction--then the conflict must be disclosed to both clients. Both clients would usually be given the right to discuss the conflict with other lawyers of their choice so that they could make an informed decision as to waiving the conflict or not. The lawyer usually would ask both clients to sign a conflict waiver, which describes the conflict, the drawbacks from using the lawyer in that situation and what happens if the situation becomes adversarial. If the situation becomes adversarial, then the lawyer can withdraw from representing one, usually. If a lawyer proceeds in a conflict situation, adversarial or not, and hasn't raised the conflict of interest to both clients and obtained a waiver from both clients, then the lawyer can be forced to withdraw from representing at least one of them, and the lawyer can be subject to sanction from the state bar, as an ethics violation.

A lot of people on this board seem to jump to claim that lawyers are unethical, but in my experience, the procedure above is followed to the letter. I've never seen any lawyer not follow it, other than one situation where I saw another lawyer miss that there was a conflict, and he immediately withdrew when he was called out on.

If a lawyer does not follow the procedure in the second paragraph of this post, that's a red flag and I would find another lawyer.


Then you have not dealt with HOA attorney's and most of them would come up with a crafty excuse not to disclose the fact they are representing both and charging one, usually the HOA. A lot of boards fall victim to this.

If the board member asked, attorney's state they represent the HOA even if they are advising the management company. Since management contracts are written in such a way that almost always hold each party harmless in case a dispute arises. So the lawyer would say their would never be a conflict of interest since the contract indemnifies each party, hence no conflict waiver required. And then say, both are working as one party with the same decisions, goals and objectives and all information is privileged. Something I'm weary about. Clueless board members will blindly support how things are being handled with management and the attorney.

The management contract and retainer agreement needs to be clearly written to make sure the management is not taking advantage of the relationship like getting advice on other HOA's that the community manager oversees. The agreements and billing statements would be the first of the paperwork to request.
KellyM3
(North Carolina)

Posts:1418


07/01/2019 2:40 PM  
Posted By JohnC46 on 06/30/2019 4:44 PM
When we hired our MC, we learned that he also used the same attorney our HOA does. When we asked our attorney, he told us that if any conflict arose between us, he would notify both parties and let them decide.

We decided the only conflict would be if we had any legal actions against the MC and as we did not expect any, we went ahead.

Rather cavalier, but we have never had a legal issue with anyone except a fellow owner so I think we made the right decision.





This is how you handle it.
PaulJ6
(New York)

Posts:184


07/01/2019 2:42 PM  
Posted By SheilaJ1 on 07/01/2019 1:08 PM

Then you have not dealt with HOA attorney's




You are correct. But ethics rules apply to ALL lawyers, whether or not they work for HOAs. So whether they want to be ethical or not, the law requires high ethical standards, and clients have remedies if lawyers are not ethical.
PaulJ6
(New York)

Posts:184


07/01/2019 2:45 PM  
SheilaJ1, you're exactly right: I have not dealt with many HOA attorneys.

But ethics rules apply to ALL lawyers, whether or not they work for HOAs. So whether they want to be ethical or not, the law requires high ethical standards, and clients have remedies if lawyers are not ethical.

And to your illustration of a contract that has indemnification provisions: the lawyer who says that's not a conflict is wrong. There is still a conflict in that the lawyer's judgment could be compromised since in case of a dispute (or even if there's not a dispute), the lawyer could be in a position where he or she needs to decide in a way that benefits one client to the detriment of another. That's a conflict, and it's unethical not to disclose that and obtain client waiver of it.
AugustinD


Posts:1886


07/01/2019 6:21 PM  
Posted By PaulJ6 on 07/01/2019 2:45 PM
So whether [attorneys] want to be ethical or not, the law requires high ethical standards, and clients have remedies if lawyers are not ethical.


What a load of crap. These "high ethical standards" are strictly within the framework of the "adversarial system of law" that the United States ostensibly practices. I say "ostensibly" because in a real adversarial system, every party to litigation and pre-litigation would have well-qualified counsel. Well-qualified counsel is simply not affordable for most people who have been legally wronged.

Attorneys hired by well-to-do clients beat up and slander the un-represented (and often legally in the right) all the time. Prosecutors and judges alike routinely shortchange those accused of a crime who cannot afford competent counsel. Attorneys, prosecutors and judges can and do legally get away with this under the Rules of Professional Conduct. Don't tell me this is a 'high ethical standard.' That Kool-Aid you're drinking is as toxic as what the Reverend Jim Jones served up.
PaulJ6
(New York)

Posts:184


07/02/2019 5:08 AM  
Posted By AugustinD on 07/01/2019 6:21 PM
Posted By PaulJ6 on 07/01/2019 2:45 PM
So whether [attorneys] want to be ethical or not, the law requires high ethical standards, and clients have remedies if lawyers are not ethical.


What a load of crap. These "high ethical standards" are strictly within the framework of the "adversarial system of law" that the United States ostensibly practices. I say "ostensibly" because in a real adversarial system, every party to litigation and pre-litigation would have well-qualified counsel. Well-qualified counsel is simply not affordable for most people who have been legally wronged.

Attorneys hired by well-to-do clients beat up and slander the un-represented (and often legally in the right) all the time. Prosecutors and judges alike routinely shortchange those accused of a crime who cannot afford competent counsel. Attorneys, prosecutors and judges can and do legally get away with this under the Rules of Professional Conduct. Don't tell me this is a 'high ethical standard.' That Kool-Aid you're drinking is as toxic as what the Reverend Jim Jones served up.




Watch your mouth.

Look at, for example, the Rules of Professional Conduct in New York: https://www.nycourts.gov/LegacyPDFS/rules/jointappellate/NY-Rules-Prof-Conduct-1200.pdf

These are a very wide-ranging set of RULES that require ethical conduct in all aspects of a lawyer's practice. If these RULES aren't followed, then a lawyer may be hit with ethics charges by the state bar. In many cases, clients can also go after a lawyer for misconduct.

There are a lot more rules that govern the conduct of lawyers, too.

Yes, there are slimy and unethical lawyers. Perhaps they get away with their behavior because nobody bothers to hold them accountable. But you certainly can, and there are a lot more rules governing ethics of the legal profession than there are governing many other professions.
AugustinD


Posts:1886


07/02/2019 5:42 AM  
Paul, If you had given attention to how these rules of conduct cannot yield ethics within a fictitious adversarial system, I might give your chest beating some credit.
NpS
(Pennsylvania)

Posts:3572


07/02/2019 6:03 AM  
Interesting dialog Augustin and Paul.

I have a different take.

Personal ethics is something that comes from your upbringing. Your values can be different than someone else's, and you have to figure out where your personal boundaries are.

As far as rules of conduct for lawyers is concerned, that's a mixed bag. The reason that those rules were developed was because of some combination of a widespread lack of ethics in the profession or a huge number of complaints from clients and opposing counsel. I do not believe that lawyers learn about ethics from the rules - They learn about where the boundaries are, and decide for themselves whether they'll stay inside the lines or push things a bit or maybe a lot. (Not unlike the way that many people do their taxes). The decision on where to draw the lines is often driven by financial objectives, which vary from person to person.

If you look at what kinds of behaviors that lawyers get sanctioned for or actually disbarred, there are relatively few. Usually extreme violations are involved, not the failing to follow this rule or that rule. Most involve misapplication of money in one way or another. Lawyers know this and behave according to their personal risk tolerance.

As far as the legal profession is concerned, that's a mixed bag too. About half are litigators (sometimes referred to as hired guns). The other half are transactional (preparing docs, etc). Good ones and bad ones in both camps, but people tend to see all lawyers as the hired gun type. Most people don't consider that the lawyer is usually introduced to the problem long after the powder keg has exploded.

Do powerful clients have the edge. Absolutely. But that's also true in every other area of life including political influence and access to resources.


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

Posts:184


07/02/2019 6:04 AM  
Posted By AugustinD on 07/02/2019 5:42 AM
Paul, If you had given attention to how these rules of conduct cannot yield ethics within a fictitious adversarial system, I might give your chest beating some credit.




Augustin, I'm not saying that all lawyers follow those rules- they certainly don't. I'm saying that there are strict ethical obligations that lawyers are required to follow--much stricter than in a range of other professions--and if they don't, then they can be held accountable.

In my limited experience dealing with HOA lawyers, I have not been impressed, and I have seen things that they've done that caused great concern.

I've also seen plenty of low-grade lawyers who don't know or care about ethical rules.

So perhaps we're talking past each other. We've both seen plenty of trashy lawyers. My point is that there are strict ethical rules that can be used to hold them accountable.

My point- and you can call it chest-beating if you want- is also that lawyers in reputable law firms are very concerned about strict compliance with all ethical rules and other legal obligations. Those firms pay well, and if a lawyer violates an ethical rule or other obligation, s/he can lose his reputation and his or her livelihood very quickly; since the consequences of a violation, in reputable law firms, are severe, lawyers in those firms are very focused on compliance. That's been my experience. But plenty of HOA lawyers don't work in places like those.
PaulJ6
(New York)

Posts:184


07/02/2019 6:08 AM  
And, Augustin, to summarize:

The Yale Law School grad who works at Wachtell or any reputable firm will be extremely focused on compliance with all legal ethics rules, and will be very careful to follow them.

The low-grade HOA lawyer may not know or care about ethics rules, but s/he can still be held accountable for noncompliance with them, if the client or another lawyer or person affected by the lawyer knows about those ethics rules.
NpS
(Pennsylvania)

Posts:3572


07/02/2019 6:26 AM  
Posted By PaulJ6 on 07/02/2019 6:08 AM
And, Augustin, to summarize:

The Yale Law School grad who works at Wachtell or any reputable firm will be extremely focused on compliance with all legal ethics rules, and will be very careful to follow them.

The low-grade HOA lawyer may not know or care about ethics rules, but s/he can still be held accountable for noncompliance with them, if the client or another lawyer or person affected by the lawyer knows about those ethics rules.



What a load of snot.
Where you went to school and where you got your first job says nothing about your character. You're being groomed to think like a corporate lawyer, and you've already demonstrated that you can make the grade in that narrow little slice of the world where you can try to insulate yourself from reality and look down at others who make their way on their own without being spoon fed.
Maybe someday, you'll get some experience under your belt, but til then keep on dreamin.


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

Posts:184


07/02/2019 7:04 AM  
Posted By NpS on 07/02/2019 6:26 AM
Posted By PaulJ6 on 07/02/2019 6:08 AM
And, Augustin, to summarize:

The Yale Law School grad who works at Wachtell or any reputable firm will be extremely focused on compliance with all legal ethics rules, and will be very careful to follow them.

The low-grade HOA lawyer may not know or care about ethics rules, but s/he can still be held accountable for noncompliance with them, if the client or another lawyer or person affected by the lawyer knows about those ethics rules.



What a load of snot.
Where you went to school and where you got your first job says nothing about your character. You're being groomed to think like a corporate lawyer, and you've already demonstrated that you can make the grade in that narrow little slice of the world where you can try to insulate yourself from reality and look down at others who make their way on their own without being spoon fed.
Maybe someday, you'll get some experience under your belt, but til then keep on dreamin.





NpS, there's no reason for insults on this board.

I stand by my statements. I haven't found HOA lawyers, in my limited experience with them, to have the same standards as well-educated lawyers at large, reputable firms.

I have plenty of experience, but fortunately only limited experience with HOA lawyers.
AugustinD


Posts:1886


07/02/2019 7:14 AM  
Posted By NpS on 07/02/2019 6:03 AM
If you look at what kinds of behaviors that lawyers get sanctioned for or actually disbarred, there are relatively few. Usually extreme violations are involved, not the failing to follow this rule or that rule. Most involve misapplication of money in one way or another. Lawyers know this and behave according to their personal risk tolerance.
[snip for brevity in responding]
Do powerful clients have the edge. Absolutely.


From my review of attorneys' disciplinary proceedings, and the daily national list of well-endowed clients beating up on the little guy/little gal who has either no attorney or has an attorney who is not well-qualified, I concur.

Paul, if you were to stop calling these rules of "ethics"; cease insisting that Yale grads and for profit corporate attorneys are somehow more ethical than non-Yale grads and non-profit corporation attorneys; acknowledge that the attorneys' rules of conduct are designed for a non-existent, fully adversarial system where all sides have competent counsel; then we might have some agreement.

More importantly: The OP is on a HOA Board. If it is a medium-to-large sized condo, we could be talking about a budget on the order of a million dollars or so. This would mean the HOA has money to pay an attorney to act as a pit bull. The OP's Board's President or a board majority has invited the HOA's attorney to attend some Executive Sessions. The OP as a director appears to have some positions that could easily be perceived as legally adverse to the President's or Board Majority's. The OP appears to have the law on her side. But the OP is unrepresented. The HOA attorney will do what the Board majority (or possibly just the President) want him to do. This means the HOA attorney can exaggerate -- lie, really -- and use legalese to his heart's content all in the name of snarling at and intimidating a person the Board majority (or possibly just the President) deems to be a person who is a threat to the Board majority's (or President's) position.

The Rules of Professional Conduct require the HOA attorney not to zealously represent "Thee Law" and "truth." Instead, the rules require that the HOA zealously represent his client, no matter how wrong the client is. The worst part is that the typical HOA member and director believes the HOA attorney is a legal referee acting as an impartial judge.

If a majority of the OP's Board does not want IDR, but the minority director does, then the attorney will do what he can to "explain" (lie) to the minority director about the reasons why IDR is not going to happen. The worst part is that the HOA attorney can rationalize not explaining to the minority director that, by law, he (1) must represent the majority's position and (2) must not pass judgment on whether the majority is doing what is legally the best choice.

If push looks like it is going to shove, one action a minority director can do in a situation like this is ask the HOA attorney who he represents:

Minority Director: Mr. HOA attorney, whom do you represent?

HOA Attorney: My client is the HOA. I work for the best interests of the HOA.

Minority Director: From whom do you take direction?

HOA Attorney: The Board.

Minority Director: And when the Board is not unanimous on what legal position to take, from whom do you take direction?

HOA Attorney: The Board majority.

Minority Director: When you represent a board majority, are you obliged to advocate zealously for their position, regardless of whether you believe the Board majority has made a good decision?

HOA Attorney: Yes but I am acting in the best interests of the HOA.

Minority Director: At times, does "best interests" mean you are defending to the best of your ability a board majority's legal position that you do not like?

HOA Attorney: My personal view of the merits of the board majority's decision is irrelevant.

And so on.

This is not ethics. It is an attorney following the rules of conduct on the presumption that this little, underfunded, legally unrepresented minority director is on a level playing field with him. Nothing could be more unethical.
PaulJ6
(New York)

Posts:184


07/02/2019 7:52 AM  
Augustin, then we can call ethics rules "rules of professional conduct", their official name.

On this board I see a lot of people saying that lawyers are unethical.

Lawyers in my world (corporate law) are NOT unethical at all. They are extremely rule- and law-abiding, and take all rules of professional conduct and all laws very seriously, both in their own practice and when advising clients. All laws must be followed all the time is the rule of thumb.

In my limited experience with HOA lawyers, I don't see that. I see them try to bully homeowners and in some instances play fast and loose with the law. That's not my world at all, and I find it reprehensible. I also don't know any Yale Law grads who are HOA lawyers; it's a field that doesn't pay particularly well and so people who have more lucrative options generally won't go into it (although there must be a Yale Law grad somewhere who is a HOA lawyer).
NpS
(Pennsylvania)

Posts:3572


07/02/2019 8:18 AM  
Posted By AugustinD on 07/02/2019 7:14 AM

HOA Attorney: My personal view of the merits of the board majority's decision is irrelevant.

This is not ethics. It is an attorney following the rules of conduct on the presumption that this little, underfunded, legally unrepresented minority director is on a level playing field with him. Nothing could be more unethical.



I posted my views on ethics and personal character earlier in this thread, so I won't repeat them here.

I will simply add that -

The lawyer's job is a balancing act.

She advises. The BOD decides. She then decides whether she is going to vigorously pursue the BOD's decision or withdraw from representing the HOA on the issue or maybe on all issues. So much depends on the particulars.

But there is another reality. A BOD is a political body. Most often the Pres is the primary contact for the HOA lawyer. Keeping the client can depend on remaining in the good graces of that Pres. And a different Pres might be the one to deal with a year later. Most lawyers wouldn't survive very long if they allowed their personal views to get in the way of what is in actuality a difficult business.


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


Posts:1886


07/02/2019 8:20 AM  
-- I cannot agree with a blanket statement that all (for profit) corporate attorneys are ethical and law-abiding. For example, corporate attorneys chew up the unrepresented little guy/gal all the time and twice on Sunday. Some times the little guy/gal manages to put together enough money to initially hire some solo practice attorney without a staff and without millions of dollars to bankroll pursuing a case over a few years (or even decades). Even then the corporation will bury the solo practice attorney in paperwork and court filings, exhausting the little guy/gal's and the solo practice attorney's resources. As you know, doing so is the legal obligation the corporate attorney has to her or his client, consistent with the Rules of Professional Conduct. You call this ethical. I do not. The premise of the Rules is that all sides in a legal dispute have a lot of money and competent counsel. Because this premise is often not met, I think any attorney claiming compliance with the Rules ensures 'ethical conduct' is guilty of fallacious reasoning.

-- As I hope you are aware, the several decades old 'access to justice' movement has improved things somewhat, from providing free legal clinics to incentivizing large corporate firms to have departments dedicated to pro bono work. I am aware that many corporate attorneys are discouraged with their work. I believe a significant number of attorneys first wanted to get into the law to help promote justice. They do not see this happening. To help morale (and maybe the firm's reputation? whatever), some large corporations and law firms offer their attorneys the chance to do some pro bono work in the name of the firm.

-- I appreciate all else you wrote. I think you have a point about how HOA attorneys are generally lower income. I think HOA attorneys at times can be driven by billable hours to the point that stirring up conflict is to the advantage of their wallets. I agree this tends result in the less qualified attorneys becoming HOA attorneys.
AugustinD


Posts:1886


07/02/2019 8:24 AM  
Posted By NpS on 07/02/2019 8:18 AM
But there is another reality. A BOD is a political body. Most often the Pres is the primary contact for the HOA lawyer. Keeping the client can depend on remaining in the good graces of that Pres. And a different Pres might be the one to deal with a year later. Most lawyers wouldn't survive very long if they allowed their personal views to get in the way of what is in actuality a difficult business.


Agreed. Attorneys have to put food on the table; pay for their kids' private school education; keep their swimming pools heated; and so on.

FWIW I agree with pretty much all you wrote on "ethics" and the attorney here.
MarkW18
(Florida)

Posts:48


07/02/2019 8:30 AM  
Those those critical of lawyers who think they are a load of crap or load of snot and then recommend that HOA's seek their advice, I think that speaks volumes for your intercity.

Maybe, instead of HOA's relying on attorneys, maybe they should seek the advice of plumbers or electricians as I think they may make more than attorneys.
PaulJ6
(New York)

Posts:184


07/02/2019 8:33 AM  
Augustin, I see that you're viewing "ethics" as meaning "fairness".

Is it unfair for a lawyer to run over an unrepresented person? It seems unjust. But I know plenty of very high-income people who don't bother to hire counsel and lose a lot of money by being run over, and I don't view that as unjust. But I'll totally agree with you that it does seem unjust if someone can't afford a lawyer and gets run over.

I do have to stand by my statement that well-educated corporate lawyers in larger law firms are extremely ethical and law-abiding. That's my world. Are there plenty of corporate lawyers in other situations that are not? Of course. Is there a power imbalance between corporate lawyers in larger firms vs. people who don't have counsel? Of course, but that situation doesn't really come up in my world--corporate lawyers generally deal with making investments and managing investments, and people who can't afford counsel aren't in that world, unfortunately.

But your point about there being power imbalances between lawyers and others is a fair one. Unfortunately in law you're paid based on your abilities (or your firm's abilities), and the more money you have, the better lawyer you'll get, in many cases.
AugustinD


Posts:1886


07/02/2019 8:44 AM  
Posted By PaulJ6 on 07/02/2019 8:33 AM
Augustin, I see that you're viewing "ethics" as meaning "fairness".


And you're calling "ethical conduct" any conduct where an attorney 'just follows orders.' This is your right, of course. Else I think we'll have to agree to disagree on your several blanket statements about how all corporate attorneys are of the highest "ethics" yada.

PaulJ6
(New York)

Posts:184


07/02/2019 8:47 AM  
Posted By AugustinD on 07/02/2019 8:44 AM
Posted By PaulJ6 on 07/02/2019 8:33 AM
Augustin, I see that you're viewing "ethics" as meaning "fairness".


And you're calling "ethical conduct" any conduct where an attorney 'just follows orders.' This is your right, of course. Else I think we'll have to agree to disagree on your several blanket statements about how all corporate attorneys are of the highest "ethics" yada.





No, not so at all.

"Ethical conduct" is conduct that is in very strict compliance with the state's Rules of Professional Conduct and all applicable law (e.g., Federal and state statutes, regulations, rules, etc.).

In my world, everyone does that or gets thrown out. See how quickly anyone who doesn't gets fired from his or her law firm--e.g., the Willkie Farr partner who participated in the college cheating scandal is one example, but anyone who does even a lower-level offense loses his or her livelihood quickly as well.

Just following orders is NOT ethical conduct at all.
AugustinD


Posts:1886


07/02/2019 8:55 AM  
Posted By PaulJ6 on 07/02/2019 8:47 AM
"Ethical conduct" is conduct that is in very strict compliance with the state's Rules of Professional Conduct and all applicable law (e.g., Federal and state statutes, regulations, rules, etc.).


-- Says you.

-- That is Kool-Aid you are drinking.

-- Why do you speak in absolutes instead of qualifying your statements with, "I think... " and similar?

-- Conduct that is in strict compliance with The Rules is conduct that is in strict compliance with the Rules (sic).
PaulJ6
(New York)

Posts:184


07/02/2019 9:06 AM  
Posted By AugustinD on 07/02/2019 8:55 AM
Posted By PaulJ6 on 07/02/2019 8:47 AM
"Ethical conduct" is conduct that is in very strict compliance with the state's Rules of Professional Conduct and all applicable law (e.g., Federal and state statutes, regulations, rules, etc.).


-- Says you.

-- That is Kool-Aid you are drinking.

-- Why do you speak in absolutes instead of qualifying your statements with, "I think... " and similar?

-- Conduct that is in strict compliance with The Rules is conduct that is in strict compliance with the Rules (sic).




AugustinD, I think it's best that we on this board all try to be civil. I'll let you proceed in this discussion with others.

My point is that lawyers in my world are very serious about complying in full with all professional rules and all laws--period, end of story. You seem to be more concerned about fairness for people who are disadvantaged. That's admirable, and I'll concede that even if a lawyer falls all law, period, then there is still unfairness that affects disadvantaged people. Are more laws/rules/etc. needed to address that unfairness? Of course.

That unfairness certainly happens in the HOA context, with low-grade lawyers going after homeowners. In my world, though, it's all making and dealing with investments--nobody's poor and unable to afford good counsel. But I'll acknowledge that your points about fairness generally are valid.

Best wishes for continuing this with others.
PaulJ6
(New York)

Posts:184


07/02/2019 9:07 AM  
Typo in my post: "falls all law" should be "follows all law".
MelaniW
(Maryland)

Posts:8


07/03/2019 6:35 AM  
If a Community Manager is a member of CAI, has the CMCA certification, or belongs to another Community Association membership, they have to abide by the ethical guidelines for that group, or risk being dismissed or lose their certification.

CAI and the CMCA require managers to disclose any conflicts of interest, or PERCEIVED CONFLICTS OF INTEREST. This means, in a gray area, such as this one, the manager should disclose just in case the Board feels that having the same attorney is a conflict of interest.

The original question was should the attorney disclose- I don't know if they are required to hold to the same standard.

I also want to add: managers typically speak very often with the attorneys that work for their associations, and there is typically a professional bond. I have a recommendation for any association that wants to pursue their management company legally. First, ask the manager which attorneys are used for any communities in their office. Then, choose an attorney that was not mentioned, and also states that they have no dealings with that management company.

This way you hopefully have an attorney that you feel can proceed in an objective fashion.
PaulJ6
(New York)

Posts:184


07/03/2019 7:34 AM  
MelaniW, the answer is YES, the attorney should disclose, since it's a conflict of interest, even if it's not an adversarial situation.

Further, if a HOA lawyer talks to the management company, depending on what's discussed, the HOA lawyer could be "breaking privilege". Legal advice give to a client (the HOA) is often protected from having to be disclosed in litigation, since it's considered "privileged". But when the advice is shared with others, that privilege may be broken. That means that if the HOA is sued, the legal advice that the lawyer gave to the HOA could need to be shared with other parties in the litigation. That's very bad.
StacyH
(Georgia)

Posts:15


07/03/2019 9:02 AM  
That would definitely be something that should be disclosed. I would even be wary if you think they have any kind of "friendly" relationship. We had an issue with our former mgmt co & our former counsel. The mgmt co. referred a lot of business the firm's way, including ours. When the time came that a former board tried to terminate the contract, the attorney totally worked against the Association (including a negotiated buyout of the existing, properly terminated contract for thousands of dollars). It was shady,shady business.
JZ2
(Florida)

Posts:43


07/03/2019 12:41 PM  
//Further, if a HOA lawyer talks to the management company, depending on what's discussed, the HOA lawyer could be "breaking privilege". Legal advice give to a client (the HOA) is often protected from having to be disclosed in litigation, since it's considered "privileged". But when the advice is shared with others, that privilege may be broken. That means that if the HOA is sued, the legal advice that the lawyer gave to the HOA could need to be shared with other parties in the litigation. That's very bad.//

That is a very real concern, Paul. Thank you for your comments. They are welcomed.


JZ2
(Florida)

Posts:43


07/03/2019 12:48 PM  
Let me give you an example that hopefully will help illustrate why it is critically important for an Association to ensure that its legal counsel does not also represent the Association's property management company.

The relationship between the Association and its property management company is governed principally by the terms of the contract that binds the parties. Those contracts are almost always prepared by, and hence predictably favor the interests of, management companies.

If the same attorney who represents the management company also represents your Association, he or she may not take the same pains to point out potentially less than favorable verbiage in the management contract.

And that could end up costing your Association money.... In fact, in virtually every case that I have seen, it typically does.
AugustinD


Posts:1886


07/03/2019 12:52 PM  
Posted By StacyH on 07/03/2019 9:02 AM
That would definitely be something that should be disclosed. I would even be wary if you think they have any kind of "friendly" relationship. We had an issue with our former mgmt co & our former counsel. The mgmt co. referred a lot of business the firm's way, including ours. When the time came that a former board tried to terminate the contract, the attorney totally worked against the Association (including a negotiated buyout of the existing, properly terminated contract for thousands of dollars). It was shady,shady business.


Thank you for sharing this. If there was no written disclosure to the HOA by the attorney, I hope someone filed a complaint with the state's attorney's disciplinary board.
StacyH
(Georgia)

Posts:15


07/03/2019 3:35 PM  
Unfortunately, the board we replaced hardly documented any of this. When the remaining members of that Board were confronted & asked for the emails, they all resigned.
StacyH
(Georgia)

Posts:15


07/03/2019 3:36 PM  
Unfortunately, the board we replaced hardly documented any of this. When the remaining members of that Board were confronted & asked for the emails, they all resigned.
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