Board Attorney Biased towards Director Running for Elections

You're right. It's not his business as a lawyer to weigh in on something like that.

This is example 99,384 of why I have such a low view of HOA lawyers.

If the board is filled by people who opposed my proposals what are my options. I did bring it to vote and the present President along with other 2 new members who got elected opposed my view of firing the attorney. They feel he is not biased and just opposed my 'cheap' opinion.

For that to be effective, it would be necessary to find a specific Rule of Professional Conduct that he violated. Being an idiot doesn't necessarily violate any of them.

Telling the lawyer that you will report him to the bar would be stronger than actually doing it.

If the attorney is attempting to enhance his/her position with certain board members would be enough for a complaint. The Bar knows that regular joe's are filing complaints and knows that most people cannot specify a rule number, the bar would have to decide what rule was violated. The complaint should report the facts and a belief that something unethical occurred.

I also believe that telling them you intend to report them if the conduct continues would get your point across.

That's doesn't appear what the poster stated, the HOA should of clearly stated what the role of the attorney was, it appears the HOA was not solicited to give a legal opinion. The attorney acted on his/her own. You don't know if the vote was changed, some members may have changed their vote because of the actions of the attorney.

MC IS management company the previous board hired to do all our mailing services for a service fee + premium.

You walked right into this, but then I wouldn't expect you to understand.

My cost per copy is .5 per page. That is machine leasing, toner and paper. A management company can charge .15 or more per page. Let's use .15 for this exercise.

You are restating your governing docs, 100 sheets sent to 200 homeowners equal 20,000 sheets.

At .5 per sheet, printing could you $1000.00. At .15 per sheet, the cost is $3000.00. Then add in postage, some MC's can up-charge the postage and add a service fee.

The attorney crossed a line. Attorneys, by definition, represent the association, not an individual and not the Board.

SE1
I say the attorney should not have spoken. So OK, you have won that argument. Do you think he swung the vote? The BOD does not like you and your ideas. Get used to it. Fight them or go home.

Sheila--unfortunately a bar complaint WILL NOT WORK in this case. Trying to "enhance his/her position" with board members is not grounds for a complaint.

Whether or not the person filing the complaint cites a Rule of Professional Conduct, the conduct itself needs to violate a Rule of Professional Conduct. Trying to "enhance his/her position" does not violate a Rule of Professional Conduct.

Threatening to file a bar complaint would carry a lot more weight.

OP, just tell the lawyer that you're going to get him or her fired. That may do the trick. Lawyers don't have to work for clients (generally), HOAs don't pay lawyers much and the lawyer might just decide that it's not worth it to deal with you.

Neither is applicable in this case.

OP, confront the lawyer directly.

While it's not the exact words that the OP used, it is an attempt to describe the situation without the emotion, which is obviously boiling over. The OP got elected against some tough criticism. Ok. Now what's the OP going to do to get support and work with the other BOD members?

People say and do stupid things, but that doesn't usually get them fired. And complaining to the state bar about something that is not a specific violation of the rules of professional conduct is a waste of everyone's time - The bar won't take action. And threatening the lawyer about filing a complaint is also a waste of time - He knows better than the OP what conduct violates those professional rules.

I think Kerry stated my point better than I did. Now that the OP has been elected to the position, the OP isn't going to make any changes without others. What does the OP intend to do about that?

My advice isn’t to “send...him a nasty letter”. That will backfire.

No law firm engagement letter that I’ve ever seen requires that only the president “interact” with an attorney.

OP, verbally address the lawyer and make it clear that he’s on thin ice.

Any board member can interact with the lawyer. The lawyer would need to follow instructions from a majority of the board, but any director can discuss anything with the lawyer.

And how do I know this? I’m a lawyer and regularly work with (corporate) boards.

Not a good idea.

OP campaigned on cost cutting. Now you're recommending that any BOD member can run up the lawyer fees.

If cost cutting is the OP's thing, then stick with cost cutting.

Maybe the coziness between other BOD members and lawyer causes the HOA to spend more than it needs to on legal fees. Maybe OP should question why lawyer needed to be at election meeting. Were there any legal questions that were likely to come up at the election? Attack the expense, not the person.

I stand by my statement.

The OP can certainly take the lawyer aside and verbally let him know that he (the lawyer) is on thin ice.

That's a 5-minute discussion, at most. It won't run up a legal bill and direct communications like that are acceptable.

Maybe it’s just me, but you seem to be blowing this way the hell out of proportion. The attorney didn’t have a vote, so who cares what he thinks about the budget anyway (as long as he gets paid, it’s not his problem). If he only commented about the money-saving ideas and didn’t say something like “that’s why you should vote for Mr. Z”, the homeowners should be smart enough to make a distinction – apparently, they can and did because you won the election.

It can be lonely being the only person with an opinion no one else is going along with, but it happens. However, the attorney’s job is to advise the board on legal matters and that’s really what his job performance should be based on. Right now, I think you’re honked off because he disagreed with you in front of everyone, but you have to look at the totality of his work – if that’s ok, ignore the other noise. If not and you’re concerned about legal costs, make your argument to change attorneys, based on that (use real numbers to make your point instead of focusing on personalities).

As for the rest, I agree with John. Keep making your arguments to save money and keep your fellow homeowners in the loop. Just because your colleagues don’t agree right now doesn’t mean they can’t be swayed in the future. Hopefully, the other homeowners are watching and listening – perhaps they will ask themselves why the other board members don’t seem to be interested in finding ways to save money in certain areas so the money can be spent on improvements, shoring up the reserve fund and – holding the line on assessment increases. They’re the ones who vote for board members and perhaps they’ll vote out these other people and bring on others who are more willing to consider your side.

Well said Shelia.

Paul.

We've used different lawyers to accomplish different things. One for document changes. Another for collections issues. And a third for specialty items.

We chose each of them because they get the job done at the price we want to pay.

They are all different. I wouldn't call any of them "bottom of the barrel".

As far as having a single point of contact, we do that with every single vendor we have. It's not in our docs, but it does make common sense.

We don't want any vendor to get conflicting messages from different Board members. It's common sense to do things that way for a long list of reasons.

If you think that running an HOA is only about what's in the docs, then it seems obvious to me that you don't fully understand the job or the responsibility.

To add: one of the board's main jobs is to pick the president, and terminate the president if needed.

The lawyer is engaged by the entity (i.e., the HOA). The top dog in the entity's decisionmaking is the chairperson of the board.

So if the board wants to terminate the president, the lawyer, in keeping with client obligations, would take direction from the chairperson of the board.

If only the president is the point of contact, then the lawyer would be in contact only with someone who is in conflict with the true decisionmaker? That would be an ethical problem.

So far I've only seen attorney contract/retainers for services that do no designate only the president to be point of contact. I don't think it should be any other way.

For vendor and management contracts, I've seen both where the president is the single point of contact and also where board members can contract the vendor. Most management contracts are fixed price, so if a board member or a committee member contacts them, not much we can do to stop it, only make a note of it in the record or perhaps remove the committee member, but we're so desperate for volunteers that, we just tell the vendor that they should get direction from the board unless the board authorizes the contact or if the vendor gets no response from the board contact.

Overall, I would say who cares what the contract states, if there is a problem, then contact the attorney.

I don't think it's at all typical for HOA attorneys to come to HOA board meetings and certainly not to committee meetings. There generally is no need for them to attend.

There's a big difference between small HOA boards and large corporate boards, that may be very large, have outside directors, etc. And in CA, there's corporrate law for nonprofits and, more finely, statues for non-profit mutual benefit associations, like most CA HOAs. And then there's a whole other body of law in our Civil Codes called the Open Meeting act, which has only to do with HOAs.

In most HOA bylaws, if the board wants to replace the president, they simply need a majority of the board to replace that person. There's no need whatsoever for an attorney to be present.

There is no top dog in the decisionmaking processes of HOA boards in CA. The Board governs, the board decides with their votes at meetings. The president is not some kind of "decider," though some boards unfortunately permit it.

Of course, SE1 can email or call this attorney, but speak with him? Not much chance.

The board IS the top dog in decisionmaking in CA HOA boards- as per your post. The board oversees major HOA decisions and oversees and appoints the officers. As per your post.

Yes, Richard, as I noted above with the word "unfortunately." I'm not so sure these HOA directors realize that they're on the hook if the president makes decisions that are unethical or illegal. At least I think they are, right?

The same thing has happened to the board in my HOA.

My point was that it is one thing to just permit a Board member, such as the president, to be the "decider" and another to have it done formally and legally. It takes them "off the hook" so to speak.

-- FWIW, and like a number of posters seem to be suggesting, I agree the position to take should be based on the politics of the situation.

-- The use of HOA funds to pay this attorney to campaign against you appears to me to be a possible violation of California Civil Code 5135. See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5135 . You could start the "internal dispute resolution" (IDR) process, and then as needed proceed to alternative dispute resolution. This might help prevent a repeat of this poor conduct by the HOA's attorney. If you want to make this attorney's pathetic and possibly unlawful conduct your cause d'etre, go for it. But from experience with the slimiest of HOA attorneys and Boards, I would not.

-- Congratulations on getting elected overwhelmingly. That's great. Like the others suggest, I would just keep in mind that you do not have the numbers to accomplish what you promised. I think I'd focus on getting others to run for the board who think like you do. Point out to them that the cost-cutting measures won't happen unless those who see things as you do run for the board.

-- PaulJ6 and SheilaJ1 (South Carolina), as for reporting this attorney to California's Bar: My understanding is that the bar only pays attention if the complainant is the client of the attorney. In this case, even as a director, the complainant is not the client of the attorney. The attorney's client is the HOA, as represented by the majority wishes of the board. Plus as Paul and NpS noted, one should have in mind a specific Rule of Professional Conduct that was allegedly violated. The one that leaps out at me is Rule 1.13(b) and Rule 1.13(f). See http://www.calbar.ca.gov/Portals/0/documents/rules/Rules-of-Professional-Conduct.pdf . But again, I discourage taking this route. I think this attorney will retaliate against the OP and make it into an issue. The OP already has enough of a battle being in the minority.

-- PaulJ6 suggested the OP tell the attorney, 'he's on thin ice.' How so, Paul? A board majority has already voted to keep the attorney. The OP, as one director who is opposed on this issue by the other directors, has zero power. Even worse: Suppose the attorney tells the HOA, "Your new director SE1 is threatening me. I think he is going to report me to the Bar. Responding to Bar complaints takes a lot of time. I do not get paid for this time. So I quit. Good look finding a new attorney with a guy like SE1." Threats like PaulJ6's are not appropriate; may be unlawful; and may be tortious interference with any contract the HOA has with this attorney. The HOA attorney takes direction from a board majority. The OP is not a majority. Furthermore, HOAs are corporations but they are also quasi-governmental and they are also all-volunteer. This means that a single director cannot just call up the attorney for an opinion on any old thing, in the same way a City Councilor cannot just call the City Attorney for an opinion. The issues have to come before the governing body as a whole, and then the City Attorney may be consulted /by the governing body/ as a whole. HOA's appointing a single point of contact for the HOA attorney is common. The best HOA attorneys I have seen make it clear that they will communicate only with the Board as a whole, via a designated person.

-- The comments by NpS, KerryL1, JohnC46 and SheliaH (Indiana) are pretty much my thoughts as well.

But you have not worked with a governmental or quasi-governmental organization. There are for profit corporations; nonprofit corporations that are non-governemntal; and nonprofit corporations that are governmental.

Regarding "real" corporations: If you are naively insinuating that HOAs are not real corporations, tell it to the judges who time and again use corporate law to award one side or another a victory.

Paul, are you even aware of how little Public Defenders make? Personal injury attorneys? Where I am the going hourly rate for HOA attorneys is consistent with the going hourly rate for all other attorneys. The more experience, the higher the hourly rate.

We do not agree.