Exective Session Question

My board has the idea that as long as the association attorney is present, anything can be discussed in Executive.

I have argued that this is not true, since that would bascially nullfy the "authorized topics" restriction as long as they were willing the pay the attorney to sit in (or even to be on the phone).

Can anyone elaborate on what the board can talk to the attorney about in Executive Session?

Personally I don't know why they need an attorney for every meeting or any. Seems you got some people on the board who have what I call a "Romanticized" view of what a lawyer is/does. Which is going to drain your HOA's finances.

For me, we used a lawyer like you would any paid contractor like an Electrician, plumber, or licensed professional. They are a tool for those times one needs legal actions. Considering they are paid professionals to PRACTICE law.

We also had only one person assigned to converse with the attorney AFTER approved by the board to do so. That person happened to be me. I kept the conversations very limited and only when necessary. Mostly for filing liens and did 1 foreclosure. Threats of any lawsuits wasn't a real need to run to a lawyer. Anyone threatened one I'd tell them the same thing. "Suing your HOA is suing yourself and your neighbors. So I will wait on the paperwork to be filed when your ready. Good day". There's no need to panic over every lawsuit threat.

Keeping a lawyer on "retainer" isn't necessary in all situations. That's another "romantic" notion I see a lot of. Quite frankly we paid our lawyer to do a service we could not do. Which was filing liens, foreclosure, and filing CC&R/Article of Incorporation changes. They usually just charge a certain rate that doesn't require a "retainer". Retainers are more for actual lawsuit cases.

So can the board have the lawyer in executive session? Sure if invited guest and agreed upon. Just don't think it's something they need to do if nothing really is going on legal wise. Threats of lawsuits most of the time is a bunch of hot air or manipulation. I am not going to be running to a lawyer for advice for that.

Familiarize yourself about how and why Boards can go into Exc Session. Reasons are specific

One legal right to go into Ex. Session is for the board to be advised about legal issues with the lawyer. But those issues must be revealed - not just because he/she is at the meeting.

The main issue is litigation or discussion of legal enforcement of your governing documents.

Agreed except that the lawyer should not charge for attending board meetings. That is a courtesy that higher-quality lawyers give. For the lawyer, it's time spent solidifying the client relationship and making sure that more legal work comes to the lawyer, so of course time spent at board meetings should be free.

Are you an HOA attorney?

KerryL1- I'm a lawyer and attend dozens of board meetings per year. I know what I'm talking about. However, if you're paying only $500 per year for the things you list plus more, that's nothing- that's less than an hour of work for me- so I wouldn't object to that.

It's very bad form for board members, in executive session, to discuss "anything they wish even if the matter is not appropriate in executive session".

KerryL1- looks like you're trying to pick a fight. You'll need to find someone else to fight with. I'm not responding to your posts more, other than to point out that you did not correctly copy the "quote" from my post.

So does KerryL1. I have lived in three HOAs/Condos. The HOA attorneys at all of them billed for every hour they spend on HOA matters, including attending board meetings.

I have read thousands of Kerry's posts over many years. In all that time I spent reading and appreciating the content of Kerry's posts, I never once got the impression that Kerry wanted to pick a fight. Nor did I every read a post from anyone else saying that Kerry was looking for a fight - Until now that is.

So who should I believe? The tried and true contributor. Or the guy who wants everyone to believe that he's been to a lot of meetings, so he knows what he's talking about.

Hmm ... Not even a close call.

Thanks, Richard for posting the statute about HOA executive sessions in CA. It's good for any CA folks to know. I have to pick a fight about, I mean gently correct, your "(e) Any matter discussed in executive session may be generally noted in the minutes of the immediately following meeting that is open to the entire membership."

What I see is "(e) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership." I'll double check later though as I may have it wrong.

NpS, again- feel free to say whatever you want. But I stand by my posts.

And if a lawyer is charging only $500 for several meetings, unlimited phone calls, etc., that's a pretty low-cost lawyer.

Maybe. Maybe not. Some lawyers offer a fixed price for some limited level of service. Maybe it's to build or maintain a relationship with a changeable BOD. Maybe it's to already have a foot in the door when the larger legal opportunity arises. Maybe it's economically feasible because of cost structure and ability to allocate those costs differently.

On the other hand, lawyers who chase billable hours aren't likely to see things that way. Lawyers who aren't the rainmakers of the firm may not see things that way. Lawyers who bill in 6 minute intervals and charge the client for their time even when no direct contact is made won't see it that way.

But so what. Does that make one person a better lawyer than another? I don't think so.

The first thing for any service provider needs to do is understand the market and the client base. Anyone who compares Amazon to HOA X because they are both corporations has a lot to learn.

It should be shall, it somehow changed when I bolded it.

The last word should be plural.

Yes, I know, I'll receive an ad hominem attack for pointing this out, and I'll receive all sorts of denials that I have ever spoken French.

EDITED TO FIX MISSING WORDS

NpS, here's how it goes when I post:

"I'm a lawyer and see X, Y and Z in my practice."

If what I see in my practice (20+ years doing corporate law, although NOT homeowners' association law) [EDITED TO ADD] differs from what others see in their HOAs [END OF ADDITION], then the responses are:

1. "Well, I see A, B and C. You're wrong."

2. "You're not a lawyer."

3. "No real lawyer would post online."

It's always the same thing.

So disregard what I say if you want- you're welcome to. Or see my posts for what they are: someone who's been practicing for 20+ years, including at firms in the top 10 AmLaw profits per partner ranking. It's definitely not the same field or type of practice as a typical homeowners' association lawyer, I'm the first to concede, so that's a key reason why what I see in my practice isn't what a lot of people who deal with HOA lawyers see.

[EDITED TO ADD] NpS, you can either (1) constantly find offense in what someone else says and constantly [try to] call the person out, or (2) you can just assume the best with the person and just ignore the person and let things go. You might wish to consider trying (2) instead of (1). Life's too short to fight online.

Yes, I've paid NpS numerous compliments as well.

"Toutes" is plural and thus "responsabilites" needs to be plural.

Tagline changed. Not sure if it's correct since I don't speak a lick of French. I just like the way it sounds.

Kerry, thanks for your kind words.

Paul, you and I have traveled this path before. Here, my statements were in reaction to something you said about Kerry. Should I have ignored your callout against Kerry when there was no evidence to support it? Should I have assumed the best even though you seemed to demonstrate a different intent? Should I accept your end recommendation that we should all just get along even though it was you who initiated the triggering event?

Do you even know what I'm calling you out on? No it's not that you say X and I say Y. Can you figure it out?

NpS, you made another mistake in your French.

“Je se” makes no sense. It’s “Je me”.

As per your last post, you’ll go on and on even when black-and-white facts are presented to you.

Best wishes. Again, please feel free to attack and criticize as much as you want, and please feel free to continue trying to claim moral superiority. Absolutely fine by me. But I won’t be responding.

I sort of missed your last post, Richard, till now. Just checked our contract.

We've retained two different law firms over about a 7 years period. I was on the board and we interviewed one or more attorneys from thee-four firms —all of which had a major HOA component--each time for about one hour apiece. They all offered just about the same services for a annual retainer of $500. It includes no-charge phone calls. Obviously if the matter involves research or other time spent, we’ll be charged: Partner’s time, $250/hour; Associate’s time, $225/hr; law clerks/paralegals, $125/hr. They charge by 20 minute increments. There’s also a small list of recordation, fees, etc.

The retainer includes the annual meeting and one board meeting. As noted elsewhere, the GC usually comes to the short board meeting that precedes the annual meeting and stays for the very brief organizational meeting that follows the annual meeting. So the retainer does not include “several” meetings. While ballots are being tabulated, he fields questions from the Board and Owners.

No HOA in CA or or other states with lots of HOA statutes shoul ever use a real estate attorney.

KerryL1, I think that you've handled legal matters very well.

I agree with you that HOAs shouldn't use real estate lawyers; that was the closest category to HOA law that I could find. I think that you've done a good job in selecting counsel.

Your posts are confusing, Richard. Are you saying I'm fabricating what we're paying our HOA GC, which is line with a total of 6-7 local firms we interviewed for the same services? Why would I do that?

We do, btw, have a collections legal firm and that's an entirely different matter.

Sorry to hear that, although I agree with you.

Just curious why the HOA's lawyer followed instructions of the MC; wouldn't the lawyer need to follow instructions from the HOA's board or president? You may be able to file a claim with the state bar if the HOA's lawyer violated rules of professional conduct in that situation, if you want to.

(To others, if you're going to respond, 'you're a lawyer, you should know this', 'you're a lawyer and so why are you posting online,' 'that's an easy question', please consider if doing so is the best use of time.)

Correct. I am not a HOA attorney.

From the limited things I've seen in the industry, I'm troubled, though, so, once again, I agree with you.

Yes, NpS and others will blast me for saying this, but the level of professionalism that I have seen among HOA attorneys, in my experience, is lower than the level of professionalism than I have seen in AmLaw 10 law firms.

I don't think anyone is disputing what an executive session is used for. The question is what the Board and the attorney talked about that is causing the OP heartburn. The only issue would be what actions were taken from those discussions. PERIOD, END of STORY.