How a HOA should deal with a lawyer

Given the practices I see among HOA lawyers, and how HOA boards deal with them, perhaps this would be useful.

If you're on a HOA board and are looking to hire a HOA lawyer:

1. Never agree to indemnify the lawyer. For anything.

2. Get recommendations for a HOA lawyer from lawyers. Feel free to ask non-lawyers which lawyers they'd recommend, but often non-lawyers have no real idea about the lawyer's legal knowledge and abilities. Lawyers will. So ask lawyers for recommendations of other lawyers.

3. Never agree that only one person on the board can communicate with the lawyer. The HOA is the lawyer's client. That means that the lawyer doesn't owe a duty to one individual; having a lawyer communicate with only one person runs the risk that the lawyer will just become that individual's servant.

4. Check the state bar association (the government regulator, not the private one that just sells memberships to lawyers) to see if the lawyer has been disciplined. Also Google the lawyer for court filings.

5. Remember that the lawyer works for the HOA, his or her client. And that the lawyer is bound by ethical rules. The lawyer can't do anything dishonest or in violation of the law or governing documents.

6. Make sure that the lawyer is well-versed in the Fair Debt Collection Practices Act and state laws on the topic. If not, the lawyer could screw up and get the HOA in trouble.

I'm sure I'll have more thoughts, and I'm sure people will disagree, but here you go.

I agree with Mellissa, but I think she's referring to #3 not #4.

To me, a lawyer is no different than any other vendor. So I will talk about vendors in general.

I believe that there should be only one point of contact with any vendor. There's a cost factor to consider. But there is also a confusion factor. Too many times, I've seen a disagreement on how to handle a vendor go unresolved. So 2 BOD members each reach out to the vendor with different instructions - and the result - the vendor gets mixed messages.

The problem is not with the vendor. The problem is with the inability or unwillingness of the BOD to evaluate the job that the point-person is doing and - if appropriate - give that job to someone else.

Like Sheila about the fee schedule. Let me build onto that. Many people have a Romanized picture of what a lawyer is and does. Way too many TV shows and movies usually produced by lawyers...

Do not get lost in thinking you must pay a lawyer a "retainer" or keep a lawyer retained at all times. That retainer fee is expensive and most times very unnecessary. It's just a waste of money for the HOA. You really need to consider a retainer in cases like a potentially long costly lawsuit. Otherwise, you can easily just pay as you go set up.

Remember that they can and will charge you various things. Which may include email, phone calls, text, or conversation. I found out we got charged by the lawyer $26 for every email correspondence. Also when calling, would never leave our name with them. If did not talk to them "live", then not giving opportunity to charge any fees. Not that all attorney's do this, just keep in mind that these small contact costs can be part of it. It's also not unethical or unfair for them to do this. They are providing a service to you. Much like if you took your car into the shop and asked their advice on why you hear a whistling noise coming from the trunk... (Only to find out the body you stuffed in there wasn't dead...)

A HOA is also most likely incorporated. Which means you must hire a lawyer to represent you in court as your best option. Assigning someone to represent the HOA who doesn't have legal experience probably not supported by anyone. Understand this is a requirement in court. Hence why costs can escalate fast.

Don't be afraid to use a legal service versus a lawyer. They can save money and get the job done. Especially in areas where no advice is needed. Like liens/foreclosures...

Overall understand the HOA's attorney relationship. They are NOT your lawyer. They are the lawyer who will be facing you in court if you decide to sue. Also the one you will be paying if the HOA wins court costs. Hence why I say "Sue your HOA your suing yourself and your neighbors". Are you willing to take on that FACT to pursue your case then this is the consequence. You don't get away consequence free...

1. If there is a policy of one designated contact person, then why should the lawyer take action on a communication from one of the other BOD member's email?

2. If a majority of the BOD members contacts the HOA lawyer, that's different. They have the authority to remove the existing contact person from the position, and the lawyer must listen to them as a matter of law?

3. Blanket statements about finding another lawyer because of billing arrangements does not further the conversation IMO. Some whose policy is to bill for every email or phone call don't always do that. Others do. But you will never know how much time they actually spent. Nor will you know if they are spending your money wisely. I think the bigger issue is whether you are getting the best bang for your buck. When it comes to lawyers, that's not always easy to figure out.

You and I had this conversation before on whether HOA lawyers are any scuzzier than corporate lawyers. You and I disagree. I'm willing to leave it at that.

I've had direct dealings with many lawyers. The only ones who I thought nickeled and dimed me were the big firms. I do believe that part of selecting any vendor is to pick a firm that's the right size for your organization.

It's common practice around here for lawyers to bill in 6 minute increments (.1 hour). If they spend 8 minutes, you're going to get billed for 12 minutes. But that practice is common to many lawyer types, not just HOA lawyers. Yes, you should understand how your law firm bills you and make your decisions accordingly.

For example, we use 2 law firms. One for collections. Another when we modify our organizing docs. The first bills us a fixed rate on each in a series of letters and hourly if we have to go to court after that. The second bills time regardless of activity. Yes, we get billing statements and we would challenge some of the billings if we felt that we were over-billed. But so far, we haven't.

Regarding engagement letters that say the lawyer will only speak to the president, I've never seen one. My question is - Is that negotiable? Obviously, the lawyer wants a single point of contact. If you want someone else as contact, that can be arranged and IMO it should be arranged.

To me, it still gets down to vendor management. In most cases, we stopped accepting standard-form vendor-created contracts many years ago. Many of those contracts are filled with boilerplate that favors the vendor in the event of a dispute. That's true of HOA lawyers. That's also true of corporate lawyers who don't take HOAs as clients.

Considering that you're paying an attorney for his/her time in answering questions and researching statutes and case law for the more complicated stuff, I find it interesting that you don't always charge for your time. Our attorney usually didn't charge for a quick question about general stuff, but if it's related to a case we've given him, that does get added to the bill. That's why we try to be prudent if we think we may need to contact him.

You can ask if the attorney would be willing to designate a certain number of hours that can be used to cover general questions - anything over that will cost. That's what our former attorney did and it was very effective. Those hours do add up, so we still had to be careful.

Most of us have said it's ok for one person to be designated as the attorney's primary contact, but that also means the rest of the board needs to make sure they remain aware of the discussion and that the contact was authorized. Anywho contacts the attorney outside those parameters should expect to be charged whatever the attorney charges for consultation. If the attorney charges that person whatever the association pays, find if it's higher, that's between that member and the attorney.

I agree with the suggestions on vendor management and this is very important when it comes to attorneys. Every year, you should evaluate things like how soon be or she contacts you after you ask a question, how well he or she keeps track of what's going on in court and lets you know, send you itemized bills you understand and so on.

PS - My last comment had its share of typos and I apologize for that - and appreciate that You understand what I meant to say!

Like I said, I never saw an engagement letter that said the Prez must be the point of contact. If it was in the contract, and the HOA wanted someone else to be the point of contact, then the question is -- Is the lawyer willing to alter the contract to suit the request of the HOA?

Based on the lawyer's answer, the HOA can choose to hire that lawyer or not. It's a free country. It's also a good indicator of how flexible the lawyer will be in the future.

Also as I said below, it's important to pick the right size vendor for you business. As a small business owner, I once bought into the glitter of a big law firm. I learned quickly that I wasn't that important to them. And when they missed 2 filing deadlines that almost cost me the case, they went into self-defense mode immediately. Two of the lawyers who worked on the case were Yale graduates.

No one is a "better" lawyer just because of the law school they went to. As the old joke goes: Q. "What do you call the person who graduated last his his class in Med school?" A. "Doctor."

My uncle is a retired lawyer and judge. I was telling him how hard I found it to work with our HOA lawyer. He told me the following:

Uncle: John, do you know how lawyers practice birth control?

Me: No uncle Bob, I don't. How do they?

Uncle: With their personalities.

NpS, to confirm:

If you were falsely accused of civil or criminal wrongdoing and your case went all the way to the Supreme Court, you'd hire, as your counsel, the person who graduated from a law school ranked #150 in US News just as soon as you would hire the person who graduated from Yale, all other things being equal.

Good to know. If I were a litigator, I'd be itching to be on the other side of that case.

There is a huge range of abilities among lawyers, just as there is for people in any profession, and intelligence is an important part of that (perhaps more so than other professions, given that lawyers basically sit around and read and write things and analyze them as a big part of their jobs).

Clemson doesn't have a law school.

My friends at Wyche Law Firm who are alumni of top-5 schools say that they get plenty of respect, although I will be the first to admit that being educated locally can be a big advantage.

See below for what an obstreperous owner did to a HOA over what started as a trivial matter:

https://www.greenvilleonline.com/story/news/2019/04/02/sc-hoa-says-lawsuits-bankrupting-their-greenville-community/2919200002/

All I'm saying Paul is that I've dealt with some Yalies from some big firms who, in my opinion, didn't have a lick of common sense. Some were arrogant to an extreme, but I wouldn't have minded so much if they did the job they were hired to do. They failed miserably.

I do agree with John that there are some jurisdictions where you will never win a case if you're not part of the local bar. That's the way it goes in some places, and it's something anyone should consider before going to litigation. I would never hire an outsider to litigate a claim in any of the local counties here. It's too great a risk.

As far as choosing a lawyer in a criminal matter or to argue before the Supreme Court, why is that even a part of this conversation? What does any of that have to do with choosing or dealing with an HOA lawyer? We're talking about something totally different here.

As far as your greenville link is concerned, there's nothing saying where the lawyers went to school. So once again, it seems to me that you're just peddling horror stories and saying that - oh my goodness - A Yalie would never do this or that.

For the life of me, I cannot understand why you look down your nose at HOA lawyers when in fact some of your fellow Elis don't deserve the halos you think they deserve - IMO of course.

Of course you're not changing your view. You flash that Yale lawyer badge of yours every 2 or 3 posts (just guessing). No one else here does anything like that.

Tell you what. You post a bit about your background and I'll post a bit about mine. Let's see who people here think has the better pedigree. Personally, I think that's a stupid way to do things. But if you're so intent on claiming special status, let's do a match-up and see who wins.

I did not go to Yale.

Most HOA lawyers are short lived and hate the business that I have talked to. It's not a skill or education thing. It's a preference to specialize in that area. Not unlike a doctor who wants to become a pediatrician over being an ob-gyn. They can do the Ob job but decide they like other field instead.

Had a small world thing happen a few years ago... Irony would have it my closing attorney on my current house was married to a high school friend of mine. He and I also went to college together. Total surprised. (His wife is on my FB even! LOL!) Did not realize he had become a lawyer.

We talked a little bit. Wanted to make sure my new home was HOA free. (LOL!). He told me that he used to be a HOA lawyer for about 2 years. He hated it. Told me other lawyers he knew did not like it either. They usually burn out after a few years of doing it. I could tell by how he seized up when told him I was President of one. Told him not to worry wasn't going to hire him for our HOA... LOL!

So lawyers are human too. They are all NOT equal. Hence why they have that statement on every commercial or advertisement they are "not equal etc..." Just like Realtors etc... It's best to always look for references and ask lots of questions. Also don't go in there were an binder full of "Case laws".

Which if you all have noticed I have never referenced a "case law" on anything. Will NEVER EVER reference anything to "case law". Why? I am NOT a practicing or licensed lawyer. Case law is made up and changed by every case. So your case may be precedent of case law or it may change it. To quote it or to present it to a lawyer is a bit demeaning to that lawyer. They get paid to know that stuff. We are not professionals and do not know how that all works in court. I am not going to give the impression that am a lawyer.

Also want to note something about those advertisements of lawyers on TV. You see them have someone state "I won 2 million dollars". Look at the fine print under that person. Notice they ALWAYS say "actor portrayal". It's in white lettering. Why? Because the person who won the "2 million dollars" usually are disfigured or handicapped from the accident for life. No one going to want to see a person with scars on their face or 1 eye missing stating "This lawyer won me 2 million dollars from my accident". So be careful of even what is in front of your eyes on TV when it comes to the equality of lawyers...

In NY, the Rules of Professional Conduct require the following for lawyers:

4.1 In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.

If a lawyer who I hired lied, even for my benefit, I'd fire him. And I'd expect to get fired if I lied.

AugustinD, all that means is that a lawyer who is accused of making a false statement has some basis to claim that the accusation is invalid.

Lawyers' ethical rules are very strict in banning lying. And lying would never be tolerated in any law firm I've worked, for anyone's benefit.

I am sorry that you do not acknowledge that a person who is not a client of an attorney, and is on the opposing side of the attorney's client, would have next to no chance of successfully claiming the attorney lied and so should be sanctioned by the attorneys' disciplinary board. It's typically an existential exercise in "depends on what the meaning of 'lying' is and how this interacts with zealous advocacy, which as you know, my fellow attorneys, is required by the Rules of Professional Conduct." I think you ought to remember that, as you have pointed out many times, HOA attorneys abuse their positions all the time and get away with it. I think HOA members need to know that that HOA attorneys and other attorneys are required to do this in the name of zealous advocacy.

We are not going to agree.

Mr. Clinton was disbarred for lying as a witness under oath. If his attorney had told the same lies, not for a second do I believe the attorney would face disciplinary action. The latter is my point: In the course of the required zealous advocacy for a client, an attorney may make statements to the opposition that by any ordinary standard are false, doing so with impunity, and being entirely consistent with the Rules of Professional Conduct.

Find me a citation of an attorney disbarred for a false statement to a third party, while advocating on behalf of his or her client. HOA members beware: The HOA attorney can and will lie to you with impunity and face no consequences. Why? Because it is zealous advocacy, sanctioned by the Rules of Professional Conduct, for her or his client, the HOA as represented by the Board.

Not for a minute do I think attorneys have a higher standard of professionalism than doctors, engineers, academics, many blue collar positions, et cetera.

Paul, what advice do you give to HOA members, in a dispute with the Board, when it comes to believing what a HOA attorney tells them? Should they believe that the HOA attorney has in fact looked at the case law? Should they believe a HOA attorney who says that case law the HOA member found hasn't validity, relevance yada? Should they believe the HOA attorney when she or he insists that the member is on the wrong side of the law?

Paul, what advice do you give to Beth, in a legal dispute with another party named Noah, when it comes to believing what Noah's attorney tells her (or her attorney)? Should Beth believe that Noah's attorney is giving an impartial view (without bias towards client Noah) of the law? Should Beth (or Beth's attorney) believe Jim-Bob's attorney when Jim-Bob's attorney insists that Beth is on the wrong side of the law?

I know: You cannot give legal advice. Your job is to tell Beth to hire the best attorney she can afford. But if Noah's attorney is so honest, then why should Beth need an attorney?

Never mind that countless times here you have advised HOA members to file, for one, a derivative suit.

Because it is a disservice to ordinary folks to suggest that an attorney is necessarily an arbiter of the truth and will not "lie" in the course of communicating with parties who are adverse to the attorney's client. You have been reading here awhile. Many people come here thinking they can contact the HOA attorney and get an impartial opinion. These laypeople typically think the HOA attorney represents each individual member and is an impartial interpreter of what the governing documents and HOA/condo statutes say. Nothing could be further from the truth.

Why is this on my radar? Because for one, I saw a HOA attorney insist that tree roots from trees in the common area backing up into people's individual condo's sewage drain lines were not the responsibility of the condo. In my state, oh yes they are. I am talking photographs of four-inch diameter roots completely overtaking a sewer pipe and breaking it. I am talking a half-inch of raw sewage on living room floors. Stupid attorney just let the roots grow. He never spoke of removing the trees. Over several years, raw sewage backed up repeatedly into at least four units. Finally the owners of one of the units hired an attorney. Ultimately the condo had to pay for the damage and removed the trees.

I have other examples of HOA/condo attorneys zealously advocating for their clients, pretending to be arbiters of the truth with HOA members without disclosing that they represent the HOA via its board's direction and not the member.

I am fine agreeing with you that many HOA attorneys are terrible and unprofessional. I think you ought to consider why they get away with what they do, without facing repercussions from the disciplinary board.