If a Lawyer represents an HOA, as well as the Management company

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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, 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.

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.

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.

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.

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.