BettyO1 (California)
Posts: 104
Posts: 104
Posted:
Are there any codes that specify attorney communications with one or more directors are privy to all directors?
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Legal communications
Started by BettyO1 • 10 replies • 1856 views
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TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Betty,
The attorney works for the Association, as directed by the Board. Typically, the Board will assign one or two individuals to be the contact between the Board and the Attorney for specific issues. For example: the Treasurer may be the main contact where delinquent accounts are the issue and the President, or other Officer, would be the contact for reviewing governing documents.
Once received, communications from the attorney should be available to all Directors.
Some Associations would say all Directors who have a need to know.
Either way, the communications should become part of the Assocaitions records and all Association records should be available to all Directors.
The attorney works for the Association, as directed by the Board. Typically, the Board will assign one or two individuals to be the contact between the Board and the Attorney for specific issues. For example: the Treasurer may be the main contact where delinquent accounts are the issue and the President, or other Officer, would be the contact for reviewing governing documents.
Once received, communications from the attorney should be available to all Directors.
Some Associations would say all Directors who have a need to know.
Either way, the communications should become part of the Assocaitions records and all Association records should be available to all Directors.
LarryB13 (Arizona)
Posts: 4,099
Posts: 4,099
Posted:
Quote:
Posted By BettyO1 on 08/24/2014 8:53 PM
Are there any codes that specify attorney communications with one or more directors are privy to all directors?
Are there any codes that specify attorney communications with one or more directors are privy to all directors?
Not sure if I understand the question. Are you asking that if one director communicates with the association's attorney that he must disclose the what was said to all other directors?
My own experience has been that when a person receives oral advice from an attorney that he is unlikely to understand it. If his understanding is not clear, he cannot effectively relay this advice to others. I recommend that all requests for advice should be in writing, as should the advice itself. This eliminates the issue of having a non-attorney interpreting legal advice.
SheliaH (Indiana)
Posts: 6,964
Posts: 6,964
Posted:
I was treasurer when I served on my board and so I had regular contact with our attorney about various delinquent accounts. I always copied all board members, as well as our property manager and collections manager on our messages because whether other directors serve as treasurer or not, they need to know what's going on because the board ultimately makes decisions on who to sue, what accounts to write off, etc, and those need to be informed decisions. Sometimes, other board members would chime in with a question we hadn't considered, and it really helped everyone understand the issues.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
MelissaP1 (Alabama)
Posts: 13,836
Posts: 13,836
Posted:
This topic can be complicated to many HOA members. They don't understand the relationship of HOA Lawyer and them as members. The HOA lawyer represents the HOA as a WHOLE. Who else does that? The Board. So it is the board that is responsible for hiring and communicating to the HOA lawyer. It is a decision on who amongst the board that is best qualified. It is typically the President who does it. However, another member who is well versed in legal may do so. Even though the Treasurer is mentioned it is to be noted that even that should be approved and acknowledged to the board the need to interact.
It is good to know how your lawyer charges. You don't necessarily need one on "Retainer". There are other legal services out there besides hiring a lawyer. You can get a good rate and less hassle on using them on some routine legal matters. Some of them can file liens or file various paperwork. A full-time lawyer is NOT always necessary. I hired lawyers for our specific needs. A HOA is a specialty and can be the most expensive option. A Real Estate lawyer is not typically the type a HOA needs. A HOA is a CORPORATION and deals with CONTRACT law. It's best to hire an attorney that fits the real needs you need. Plus hiring them on an "As needed basis" may save money.
Lawyers can charge you for phone calls or emails. Basically ANY communications you have on top of retaining and hourly charges. Mine charged $25 for a phone call. So I learned to NEVER leave a message with their secretary with our name. Always to try to catch them in the office. That is why it's advisable to LIMIT who talks to the lawyer. It's best to have a single source who is authorized by the board to discuss. One source also lessens the confusion and less chance of dragging more people into court.
I feel it's best to again include this: Suing your HOA is suing yourself and your neighbors. Similar if the HOA sues an owner. There are better options than lawsuits to bring against an owner than lawsuits. That should ALWAYS be the LAST option. Look at your documents first and file liens. Liens have stronger long term teeth than a lawsuit.
Added advice: It is cheaper and better to COUNTERSUE. It cost less money and can be for any damages/money spent. It saves money in that a lawyer is not necessarily needed to file the counter-suit. However, a lawyer is needed to represent the HOA in court. There is an OPTION that a member can represent the HOA in court if they choose to instead of a lawyer. It's just not the smartest thing necessarily to hire someone who is not a practitioner of the law.
It is good to know how your lawyer charges. You don't necessarily need one on "Retainer". There are other legal services out there besides hiring a lawyer. You can get a good rate and less hassle on using them on some routine legal matters. Some of them can file liens or file various paperwork. A full-time lawyer is NOT always necessary. I hired lawyers for our specific needs. A HOA is a specialty and can be the most expensive option. A Real Estate lawyer is not typically the type a HOA needs. A HOA is a CORPORATION and deals with CONTRACT law. It's best to hire an attorney that fits the real needs you need. Plus hiring them on an "As needed basis" may save money.
Lawyers can charge you for phone calls or emails. Basically ANY communications you have on top of retaining and hourly charges. Mine charged $25 for a phone call. So I learned to NEVER leave a message with their secretary with our name. Always to try to catch them in the office. That is why it's advisable to LIMIT who talks to the lawyer. It's best to have a single source who is authorized by the board to discuss. One source also lessens the confusion and less chance of dragging more people into court.
I feel it's best to again include this: Suing your HOA is suing yourself and your neighbors. Similar if the HOA sues an owner. There are better options than lawsuits to bring against an owner than lawsuits. That should ALWAYS be the LAST option. Look at your documents first and file liens. Liens have stronger long term teeth than a lawsuit.
Added advice: It is cheaper and better to COUNTERSUE. It cost less money and can be for any damages/money spent. It saves money in that a lawyer is not necessarily needed to file the counter-suit. However, a lawyer is needed to represent the HOA in court. There is an OPTION that a member can represent the HOA in court if they choose to instead of a lawyer. It's just not the smartest thing necessarily to hire someone who is not a practitioner of the law.
Former HOA President
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Buried in Melissa's otherwise off-target and lengthy reply is that normally boards choose just one director to interact with the HOA attorney if the attorney's on retainer like ours is. Or two officers as Tim suggests.
I see no reason why all directors would see the results of written correspondence between the attorney and the board rep. In fact our bylaws give directors access to all documents, which would include such.
But phone calls are different and ours to our HOA attorney are included in our retainer. So we directors could be missing out on some advice.
I see no reason why all directors would see the results of written correspondence between the attorney and the board rep. In fact our bylaws give directors access to all documents, which would include such.
But phone calls are different and ours to our HOA attorney are included in our retainer. So we directors could be missing out on some advice.
BanksS
Posts: 403
Posts: 403
Posted:
I think it depends on a few factors. What is the financial health of the HOA? What size is the HOA? How often does the Board meet? What issues is the HoA seeking the advice on?
I personally feel that the more directors' eyes and ears on HOA legal matters the better. I live in a very small community and the HOA has a very limited budget. We have no attorney on retainer. I can say with no hesitation that members do NOT want the Board to spend money on legal expenses unless absolutely necessary. Certainly the HoA can designate a director or two to be the contact between the HoA and an attorney but I think every communication should be shared with all Board members. Legal matters should be on every board member's radar in small communities with limited budgets IMO.
I personally feel that the more directors' eyes and ears on HOA legal matters the better. I live in a very small community and the HOA has a very limited budget. We have no attorney on retainer. I can say with no hesitation that members do NOT want the Board to spend money on legal expenses unless absolutely necessary. Certainly the HoA can designate a director or two to be the contact between the HoA and an attorney but I think every communication should be shared with all Board members. Legal matters should be on every board member's radar in small communities with limited budgets IMO.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Ugh--meant to write that all directors SHOULD see such written communications.
BillH10 (Texas)
Posts: 1,217
Posts: 1,217
Posted:
My question is, what is behind the original question. If a member of the Board has contact with the attorney retained by the association, it should be no surprise to the other members of the board. Frankly, the contact, reasons for the contact, etc. etc. should be shared with the other members of the board as they should have authorized the contact in the first place.
If I were the attorney, I would be exceedingly wary of such contact unless the other members of the board are copied on the contact--e-mail, etc.
If I were the attorney, I would be exceedingly wary of such contact unless the other members of the board are copied on the contact--e-mail, etc.
FredS7 (Arizona)
Posts: 927
Posts: 927
Posted:
> Are there any codes...?
In general people should not be looking for codes or laws but rather at what is appropriate, proper, and economically sensible.
As remarked by others, the lawyer works for the board. Generally speaking the BOARD should decide when to ask a legal question. Lawyer time is expensive and should be used efficiently.
By the way, if a lawyer gets an apparently suspect question from one board member, he would be likely to ask: who is asking this question (which really means, who do I send the bill to?)
In general people should not be looking for codes or laws but rather at what is appropriate, proper, and economically sensible.
As remarked by others, the lawyer works for the board. Generally speaking the BOARD should decide when to ask a legal question. Lawyer time is expensive and should be used efficiently.
By the way, if a lawyer gets an apparently suspect question from one board member, he would be likely to ask: who is asking this question (which really means, who do I send the bill to?)
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
I should have added that the reason we have an HOA attorney on retainer is because we're a very complex twin tower high rise with complicated governing documents in a state with many HOA laws.
Our HOA attorney has in his contract that the Board must select one director to contact him--we've always selected the president.
Our HOA attorney has in his contract that the Board must select one director to contact him--we've always selected the president.
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