HOA Attorney Problem

Hello everyone, I was serving in the board of directors for 2 years as the treasure.
Late october of 2018, myself and the rest of the board memebers came to an agreement to terminate the management company after our HOA attorney looked over the contract.
A couple of days later before the attorney actualy send the letter to the management company I began to have second thoughts. I asked all the board members if we can withdraw our decision because we really did not allow the management company to correct the issues. The board voted against my request and stated that they have made up their minds and they are moving foward.
3 days after that I decided to step down from the board because we just kept bumping heads and alot of arguing.
There was also expenditures that i was questioning and I just kept getting the run around for answers. About a month later, I get a letter of demand from our HOA attorney requesting for me to turn over any emails that I had with the property management company whom was fired. The management company is now stating that the board was supposed to give a 90 day notice and that the board never gave them an opportunity to correct the problems in our community and its a breach of contract.
I responded to the attorneys request and sent him over 13 emails all from the dates he requested.
Some time ago, I asked for a copy of the management contract because I wanted to understand what their responsibilities were. The management company complied and sent me the contract. The attorney asked me for that body of that particular email but i no longer have it. I sent him the copy of the contract which is what was sent to me originally from the management company. A month goes by and the attorney sends me another email staring that I should have more emails. I responded and stated that I have already provided him with every single piece of mail he requested, he then stated that I have an obligation to preserve any and all emails.
He went on to tell me that if I delete any emails from my computer that pertains to any association business ther can be consequences.
I called his office and asked him to explain to me what the problem was becasue as far as i'm concerned i have not broken any laws. All i did was serve as a volunteer and resigned because of a number of issues.
He told me that I was correct but he needs the emails becuase the mangement company is threatening to sue. I again mentioned to him that the emails from the dates he requested have already been sent to his office. Today I get another email from the attorney. He stated that because of the lack of response, he is asking me to volunteraliy bring my personal computer and mobile device so that an IT professional hired by the association can go thru my computer and look thru all my emails.
At this point I contacted an attorney because i feel like im being harassed. The attorney stated that I dont have to volunteer to do any such thing but i do have to retain the emails. The attorney also stated that if I already sent him the emails then i already complied to his and the boards request.
Doe anyone out there know what i can do, I feel like the attorney made a big mistake by not looking at the contract termination clause as well as the board members. I honsetly do not have any other emas to give him and im not going to volunteer to have my personal computer scanned lime im some kind of criminal. I feel like they are going to far and violating my rights.
Need help and advise, I can not afford an attorney and the attorney I spoke to is willing to help but I can not afford their services.

Someone please help.

-- Check your HOA's governing documents for what it says about indemnification of directors.

-- Check your HOA's insurance policy for what it says about indemnification of directors. Call the insurer and tell them what is happening. Ask the insurer to please tell you whether they are obliged to provide you with an attorney. Document this carefully.

-- Inform this harassing HOA attorney that you are not represented by an attorney, and that he needs to cease giving you legal advice. Inform him if he does not, you will report him to the Florida Bar for ethics violations. Start reading here for how to proceed, as needed: https://www.floridabar.org/public/acap/ . Be aware that the Bar typically won't take action against an attorney unless you are the attorney's client.

-- Despite what you may think, you are not the HOA attorney's client. The HOA is this attorney's client, as represented by a majority of the Board. This HOA attorney is treating you harshly because he sees you as an "adverse party" and one way or another, has been told you are a threat to the HOA.

-- Get yourself to a free legal clinic. Try:
http://www.flaccesstojustice.org/
and
https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Legal-Aid

-- Give this HOA attorney nothing more.

-- When a lawsuit is threatened, there is a preservation of evidence requirement for both sides. The standard and methodology for preserving emails is way high. It is a wonderful tool for a potential plaintiff to harass a potential defendant long before anything goes to court.

-- I am sorry you are going through this.

As others have said, you’ll really need an attorney. I’m also sorry you’re going through this because you were correct in suggesting the board should have spoken to the management company first and given them a chance to fix any problems. You’re also correct that the attorney should have looked for the termination clauses in the contract before telling the board to proceed. However, this ends, I hope someone on that board considers having a sit down with that attorney because in light of this, it may be a good idea to consider replacing HIM.

You could try to contact your email provider to see if there’s a way to retrieve deleted emails. It might not be a speedy process, you might have to have your computer scanned – and all this may cost you some money, but so will a lawsuit, especially if you have to explain to a judge why you don’t have the emails. If you really can’t retrieve them, the best you’ll be able do is be honest, explain yourself and hope for leniency.

For anyone else out there who’s having issues with their property manager and/or tussles regarding emails, here’s one person’s suggestions based on experience and a few CAI seminars. Remember, these are SUGGESTIONS – for the legal stuff, find out what’s what in your own state and do what’s necessary to protect yourself and the association:

1. Everyone on the board should know the duties of the property manager when they join and have a copy of the contract. It could be part of a board of director’s manual (there are older conversations on this website with suggestions on how to set them up)

2. Homeowners should also be told what the property manager can and can’t do. Sometimes people complain about their property manager when in fact, they’re demanding actions that only the board can authorize (if the board can’t or won’t do it, that’s another matter). If you have a website, put up a brief article as to what the property manager can do vs. the board. Remind homeowners of this once a year (the annual meeting is fine).

3. You might also run an annual survey asking homeowners to rate the property manager’s performance (along with the board’s) and share that information with the property manager.

4. It’s always best to give the property manager a chance to fix problems before you sack him or her. Do your homework – keep track of specific incidents and present those to the property manager, so you can discuss specific approaches to those problems. Come up with a deadline by which significant progress must be made or the problems resolved altogether. If it’s not done, you can decide what happens next – and document what wasn’t done.

5. If you find you must get rid of your property manager, don’t do it half assed. After checking the contract FIRST (everyone needs to read it, not just the attorney), create a transition plan. Depending on how long you’ve had the property manager, this isn’t something you can just end after 30 days or less. You need to make arrangements to get any archived documents, update the bank with any information, get an audit to make sure all the finances are in order – and you’ll need to tell homeowners when they need to begin contacting the new property managers with requests, along with the new contact information. That’s just for starters – you can visit the CAI website and look for books on best practices in working with property management companies – hiring new ones and sacking the old ones are covered.

6. Regarding emails, state law is catching up (albeit slowly in some cases) to email and if/how they should be preserved and used as evidence in civil or criminal trials, so you should consult your association attorney AND master insurance company to create a policy for board members and residents.

7. It’s best for the board to set up one email account where all board members have access and should be used to send and receive all messages regarding association business. This way, everyone knows who said what and it’s easier to preserve one group of emails

8. If board members insist on having separate accounts, those should be reserved exclusively for association business. This way, if you get a request like Hector did, it’ll be faster and easier to retrieve the information. Otherwise, you may be compelled by a judge to provide your computer so it can be scanned for all association emails – and that will also expose any personal emails you have on your bills, kids, etc. (they have to scan the whole thing in case you accidentally on purpose try to hide or delete something)

9. When I sent emails on association business, I usually copied the other board members and the property manager so everyone knew what was being discussed. I also knew the property manager preserved those emails.

Finally, as a former treasurer myself, I’m a little concerned about your comment on expenditures no one can or will explain. I can understand that if those occurred before you joined the board (the previous board and/or treasurer may have kept piss poor records or don’t want their successors to know either – for that you may have to blast the information out of them). Otherwise, as treasurer, you should have been reviewing those monthly financial reports, as the treasurer often has a better idea than others as to where the money’s coming from and where it’s supposed to go.

If those expenses occurred while you were treasurer, I have to wonder if you were paying close enough attention during meetings or at least look for weirdness in the reports and question them. If there were numbers I didn’t understand, I would ask the property manager (copying board members) so I’d have the answer before the next meeting (we received the reports a week before meetings). If your colleagues and the property manager didn’t know or refused to tell you, you could have made all this known to your neighbors. Then we would see if they would try to blow off a group of angry homeowners at a board meeting!

-- Who, besides you, said Hector would really need an attorney? I disagree that (1) he should pay an attorney and (2) that he really needs one, except possibly for peace of mind.

-- I have seen and believe reports that CAI is biased to benefit the bank accounts of HOA managers and attorneys and scare people away from serving on boards.

-- Agreed that this HOA attorney may be deserving of replacement. Though I do not expect this is likely. Rather, to Hector, people here get it.

-- I say: Let the HOA attorney, all the insurers, and the management company figure this out. Hector should not lift a finger to retrieve emails he deleted before being contacted by the attorney.

-- Hector should ignore RoyalP's comment that Hector "may very well have violated many corporate law statutes." Same for RoyalP's comment that a director has to save all emails.

“Modern email retention laws require all organizations to quickly execute a legal hold on archived email and provide data in the case of litigation.”

Origin of Email Retention Law

These demanding email archiving regulations, in which essentially nothing electronic that might be relevant for litigation can be deleted, began further back than many realize.

The need for email retention laws didn’t truly solidify until December 2006, when the Federal Rules of Civil Procedure were significantly revised. This revision marked the tenth-time changes were made to the laws since their establishment in 1938. (Cornell’s law school has an excellent index and explanation of the rules here.)

{Y'all can find the links and research for yourselves}

The revisions meant that everything electronic (emails, directives, files, communication and requests) would now have to be retained — which means if the courts request any kind of electronically stored information and you don’t have it, you have a potentially devastating legal problem on your hands.

OUR OPINIONS ARE WORTH EXACTLY WHAT THE OP PAID, IOW: ZILCH

TO REPEAT:

This agrees with what our attorney told us. Emails are corporate records, and board members should preserve them just as they would preserve paper records.

ISPs usually have the ability to retrieve emails that individuals have deleted. IT folks always caution users to think before they send emails, because email is forever.

Yes, benign neglect, guess I mis-wrote.

Dear Mr. _____,

As I have told you repeatedly, I have given you all the emails you requested. My computer has no more, either deleted or not deleted. I respectfully decline your request. Further requests by you on this matter will be ignored. If I can help in any other way, please let me know.

Sincerely,

Hector _____

If you were a board member during all this conflict, the HOA attorney will represent the entire board about this contract dispute. ( being sued) Tell this attorney to talk to the HOA attorney.

If you were OFF the board, (resigned) and you continued to be involved in this debacle, you individually could be responsible if you continued to represent yourself as the board in discussions with the MC or discussed board decisions involving this lawsuit with the MC.

What is it? Otherwise, why is this lawyer coming after just YOU?

Hector, for what it is worth:

As you are able, do your best to stay cool and, as you noted, professional. If you stay calm now, and do not, for example, fling back expletives at this HOA attorney or any of the current board, you are more likely to be calm in the coming days and weeks..

I believe what is happening to you is a little too common in HOA-land. You have a board that loathes you because you are not a "team player." They have the power to pay this HOA attorney to harass you, though the HOA attorney will successfully deny that is what he is doing. The HOA attorney is happy to bill the HOA endlessly for nonsensical legal representation such as trying to intimidate board members.

The advantage of hiring an attorney is that all communications will go through your attorney. Your attorney can make sure the HOA's attorney knocks off the intimidation. The disadvantage is that this costs you a fortune. The Board's intent is in fact probably to force you to hire an attorney and spend a few thousand dollars. It's their punishment of you.

You are going to have your reputation hurt somewhat. It is the price of having been a board minority and having co-directors who are idiots. But if you stay cool and professional, then it will hurt less.

Time does heal. I would not hire an attorney.

Yes the vendor was the MC I personally but it was for the lawn contract. The entire board was present when we all agreed for them to fix their problems within 90 days.
And yes a short time after we all agreed to terminate the lawn contract.

Thanks for the catch on this one. Wasn't sure why it was directed toward Hector as the only one they wanted emails from. It's usually the whole board members who should be providing records as well. Especially meeting notes where these decisions where made.

So something isn't quite passing the "smell test" here. Not saying it's a bad thing. Just some detail or communication has to be missing that not coming through. Like does the MC provide the lawncare? If so, he did tell the lawncare people to shape up or ship out in 90 days PERSONALLY. Which was outside scope of responsibility/permission.

Do not know/understand if it was because of this personal request that then cascaded into firing the MC. If so, then maybe the timeline wasn't followed fully in terminating the contract. Requesting the MC's contract doesn't show the intention of why it was requested. Some may interpret differently as why it was requested during this time frame. The MC since fired may say it was due to 30 - 90 days notice. The reason why wasn't put in the request was it?

So my guess is that the HOA's lawyer is wanting copies of the email of which the OP communicated dissatisfaction with their lawncare vendor. Plus establish the timeline of when contract copy was requested. Which could prove the HOA's stance on proper termination and proper notice was given.

I'd suggest saying "no" repeatedly - you don't want to give telemarketers a recording of your voice saying "yes" to anything, or you might find some interesting charges on your phone bill.

I agree with Melissa. MC's can simply tie up an HOA in court to run out the contract when the HOA is in breach. An HOA that has decided to find a new MC needs to either let the current contract run to the end of its term or pay it out immediately and go on their way.

Sadly, at this point it sounds like the HOA and maybe also the HOA's attorney are looking for scapegoats, so in the OP's place I would not be talking to anyone at all except through someone I'm paying to be on my side. The HOA's D&O insurance should cover the OP's actions during the time he was on the board, provided he was not guilty of malfeasance. Any actions taken by the OP when he was no longer on the board would not be covered by D&O insurance. If he was messing around in this issue when he was no longer on the board, then I recommend having a talk with an attorney, for peace of mind if nothing else, and let any communication with the HOA come through the attorney.

Hector,

You contacted an attorney. Follow their advice.
In fact have them (your attorney) write a letter on your behalf and, if need be, reprint and resend those emails to the attorney (along with your attorney's cover letter). Make sure that the letter is identifies who you talked to and when (date/time if you have it) about the letters along with the initial sending of the letters.

Since this occurred while you were on the board, (after you pay for your attorney) send your attorney bill to the Board (certified) requesting reimbursement as you the issue in question occurred while you were on the Board and you are indemnified by the Board (D&O insurance likely won't cover the issue).

Note: This is an excellent example why Associations need Association email for directors and why volunteers should make darn sure they use them. To do otherwise could have your personal computers/accounts and (if used) your employers computers/accounts open for inspection if ordered by a court.

I would like to thank everyone for their responses and help. Now im facing another dilema. I sent an email to the MC on Jan 14th 2019 asking for a copy of the proxy form for the upcoming elections. Elections are going to be held on the 27th of Feb.2019. The MC replied that the HOA attorney is preparing the proxy forms. 2 weeks later,I sent another email asking for the proxy form.Till this day I nor any of my neighbor's have received such proxy form. I called and left voice mails with no return calls. Last night i found out from one of my neighbors that the Board of Directors have the maintenance staff secretly going door to door asking the homeowners to sign the proxy forms. My neighbor did not sign the form and he stated that the form was asking if the homeowners agree to keep the exsisting board memebers including the paid president.
What can i do? The proxies were to be mailed out 14 days prior to the meeting, I have asked some neighbors if they have received proxies in the mail and their answers were all no.
On Dec. 26th I asked the bosrd memebers why do we keep paying the president as an employee of the MC? The attorney stated that the president can be paid because he is not a director and kind of shut me up at the meeting. Well I just went thru my governing documents and found where it states that the president is a director.
How should proceed with these dilemas?
Thank you.

Hector, you really should start a new thread with a new subject line to title. "Attorney Problem" does d fit your new dilemma.