Board members contacting attorney

Started by JanineR • 11 replies • 859 views

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JanineR (Tennessee)
Posts: 259

Posted:

How have others handled who and when a board member can contact the association's attorney directly for a question?

Do you discuss it beforehand, where possible beforehand?
Do all directors have equal opportunity to send an email to the attorney?

Tennessee | 145 units | Condos | 5 board directors

KerryL1 (California)
Posts: 14,550

Posted:

Our retainer with our HOA attorney states that only the board president may contact the attorney. This, as I understand it, is very common. Occasionally, a director has a "legal" question and, if the Board agrees, the director and the prez phone-conference with the attorney with the PM usually present.

A few months ago, I has a serious question for him about a vendor construction problem. I wrote an agenda item about it with evidence, background materials, etc., and the Board in executive session voted to send it to our attorney for his opinion and possible action. The vendor is now in the process of fixing their work defects, which requires swing staging, which will save our association well into five figures.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It costs money to talk to a lawyer. There are charges for phone calls, text, emails, or other communication methods a lawyer may charge. A response to a question can be charged. That is why unless I was talking to the lawyer directly, I would not leave them a message to contact back.

The HOA lawyer is not the member's lawyer. It is also NOT just the board's personal access lawyer. One person should be assigned to talk to the lawyer with board approval. It should be discussed and approved to contact the HOA's lawyer. Otherwise, it can cause lots of confusion and cross lines.

Example: I as a board member have a question to ask the lawyer. It's about a legal translation of a rule. The lawyer answers the question. Well that lawyer is going to bill the HOA for that advice. The next meeting the rest of the board/member see a legal charge. If it wasn't an approved expense, then could be passed back onto you to pay it.

I often dealt with the lawyers or had the accountant office do it. We used their lawyer to file liens. If the legal business was beyond that then I looked at the best lawyer options to fit our needs. I treated lawyers like a "tool" or paid contractor. They are paid to practice the law.

Why do you ask?

Former HOA President

AugustinD
Posts: 3,698

Posted:

I agree with the model KerryL1 described. It's slow but cost-efficient. It forces the board as a whole to think about a situation before picking up the phone to call the HOA/COA attorney. Unfortunately its flaw is that the often mediocre minds that make up most (sic) HOA/COA boards won't have the sense to consult the HOA/COA attorney in some situations when they should and can furthermore, bully good, intelligent people like JanineR when they feel the HOA/COA attorney should be consulted.

MaxB4
Posts: 3,513

Posted:

Of the 51 accounts I manage, only two have attorneys. One hasn't used them in about two years, the other, per the board's instruction, I handle. Today, we just finished getting a $800K roofing project loan funded with the attorney handling all the legal paperwork required by the lending institution.

The rest use a good online resource and has served us well for a number of years.

The association I live in was a horror story when dealing with legal issues. In 6 years, associations I have managed have maybe totaled $5000.00 in legal expenses, my association in a year and a half spent $300K, with no board authorization.

PatJ1 (North Carolina)
Posts: 568

Posted:

Our attorney has 1 point of contact on the HOA board. Our MC does not contact our attorney. When a legal question arises, the board discusses it and approves if we should take it to our attorney before hand.

To keep costs down, we gather as much information about the issue as possible, provide background, and advise our attorney our desired outcome all in one email. We usually receive a follow up call before our attorney advises their opinion.

Researching the issue before hand by reviewing the governing documents, internet research, and places like HOAtalk, have assisted us at keeping our attorney fees to a minimum. So far, contacting our attorney as actually saved us money in the long run.

HenryS7 (Pennsylvania)
Posts: 336

Posted:

I made the mistake of contacting the association attorney to clarify something in the CC&Rs that I didn't understand. My inquiry resulted in a major shift of responsibility of the item from the homeowner to the association, and created a big liability for us. Oops. All I was looking for was clarification, but apparently that generates a legal opinion that becomes a liability if we do not follow the attorney's advice.

I'm actually really happy with what he said but I should have checked with the other board members before talking to the attorney.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By AugustinD on 12/15/2021 8:05 PM
I agree with the model KerryL1 described. It's slow but cost-efficient. It forces the board as a whole to think about a situation before picking up the phone to call the HOA/COA attorney. Unfortunately its flaw is that the often mediocre minds that make up most (sic) HOA/COA boards won't have the sense to consult the HOA/COA attorney in some situations when they should and can furthermore, bully good, intelligent people like JanineR when they feel the HOA/COA attorney should be consulted.

Yup! This is why boards get in trouble - they fly by the seats of their pants and make up all types of stuff to justify their foolishness. That said, thinking about a situation at length is something all homeowners should consider before running off to court. Sometimes, it's a matter of calming down and counting to 10, then reviewing the situation critically before taking action.

Kerry's approach is what our board did when it came to contacting our attorney. Our letter of engagement also allowed for a certain number of hours we could use to call or email the attorney and ask anything without getting a separate charge. Even so, we were careful as to when we contacted him and why because those hours can be used up quickly.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our BOD has to approve any contact with our attorney. We assign one person on the BOD to be the point of contact on any given issue. I am the VP of my BOD and presently working with our attorney for clarification of a Covenant concerning BOD or owner responsibility.

MichaelS56 (Minnesota)
Posts: 859

Posted:

Contacting an attorney is a very serious decision and in our Boards position, a step of last resort.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Our attorney charged by the hour (no retainer). Therefore, it would require an obligation for an expense on the operating budget.

Hence, our board would agree on the need for an attorney opinion.
We would then assign one director to be the liaison to obtain that opinion.
If it is really complicated issue, we might actually discuss what specifically to ask (as few attorneys will go beyond what was asked, so asking the right question is important).

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

Posted By MichaelS56 on 12/17/2021 6:07 AM
Contacting an attorney is a very serious decision and in our Boards position, a step of last resort.

There is a fine line between contacting your attorney for a review and being contacted by your attorney because someone has filed a lawsuit. Or just paying out because it was handled incorrectly from the start.

Consulting your HOA attorney does cost the HOA $, but can also save money. As in our case of owner responsible repairs. We spent thousands of $ repairing condo interiors for common element failures before a legal review of our governing documents determined that we needed to only repair the failure. (There was no negligence involved).

Legal questions take careful consideration. HOA's have to follow state and federal laws to protect the HOA from liability. State and Federal passed legislation makes this more difficult for HOA's to fulfill their fiduciary responsibilities.

Neighbor to neighbor issues, which were once easier for HOA's to stay away from, now have to be researched for federal discrimination violations because of recent legislation.

We budget $2,000 a year for legal. Through careful planning and a single board member contact, we have not overspent that budget item. We protected the HOA and educated the board members in the process.

Sadly, the next board may not act the same way.

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