sample board policy on using an attourney

An HOA board is not made up of HOA law experts and you need a method for board members to get basic HOA questions answered without breaking the bank.

My Association pays a $600 annual retainer to a law firm that specializes in Representing HOAs. Any board member may call and get discuss HOA issues (limited to 15 minutes) as often as they like, has assess to quarterly online board member training, access to online articles addressing common HOA issues and received a newsletter containing current HOA issues.

Additionally the law firm has the HOA’s collection policy and is authorized to initiate collections. They receive monthly statements on delinquencies. Once a member reaches the prescribed level, the law firm automatically begins collections and foreclosure as provided in the Board approved policy. Fees for this service is billed to the home owner.

The Board then approves billable attorney services such as document review, enforcement actions, and conference meetings with staff attorney.as needed.

Even if you don’t have access to this type of law firm, you can negotiate something like this individually with a local attorney.

It has never been a problem, but I also don’t have a nit wit on the board.

I dont know if our board has changed it since I stepped down, but only one person was designated as the contact, usually an officer. When I was treasurer, I did the bulk of the contact because we had a bunch of delinquencies. Our firm also has a online client portal, so any board member could access it and see what was going on. Any attorney contact had to be discussed and approved via a board vote before contact and the response was sent to everyone via email or listed on out monthly management report,nwhich made up a huge part of our board meeting.

Like Dean's community, we had a certain number of hours every year that we could use to ask questions (we also have our attorney on retainer). That's why attorney contact had to be pre-approved because those hours add up quickly and we didn't like to use them on issues people should have sense enough to figure out on their own (e.g. read the documents).

In your case, I'd start with who was eating up all the time and ask what prompted the contact - if the question concerned something in the documents, why not bring that question to the board meeting so everyone can discuss it instead of trying to one-up another board member? You should be getting an itemized bill indicating how much of the retainer hours (we'll call them that for now) were used, and from there who made the phone call, email, fax, etc.

It may be you'll have to forbid that person from making any more contact and tell the attorney that any question from this person or persons should be billable to them for the remainder of the year. This decision should be made in executive session since this concerns board member conduct.

Our attorney would also meet with the board once or twice a year where we could ask general questions on other association topics, so people could save their questions for that. I'd gave another meeting with the attorney to discuss all the delinquencies and develop a strategy to approach each of them, starting with the more obnoxious ones. That usually saved a lot of time from asking questions.

So, start with taking a look at what prompted the attorney contact. Maybe what you really need is a board member handbook that would list general policy and procedures for a variety of topics instead of reinventing the wheel every time.

Education is also key, which is why I'm always stressing board member education after they join (e.g. CAI's board member toolkit) and perhaps a few specific topics every year for continuing education, such as reserve studies, especially if you're commissioning one this year. You will find as people become more familiar with their community's issues,, they should become more thoughtful in how to address them and you won't have to rush to an attorney every time. By the way,, I believe CAI has sone materials on working with association attorneys, which could be a foundation for your policy.

This is why I said in another one of your conversations that people catch on to HOA board membership faster than others, so you can't assume everyone will do it in a year or six months. They nay never be capable of buying a clue. You have to be willing to put in the work and if a person finds he/she doesn't have the time or willingness to do it, that person should do something else and leave board membership to thoss willing to do do.

Our Declaration states that only the board can hire an attorney. Then the board appoints one of the directors to act as liaison between the board and attorney. Don't do what our board did by appointing the director who never stops talking.

Keep in. Ind folks the Board is immune from personal liability when it can be proven that their actions or decisions were reasonable and made in good faith. Acting on your attorney’s advice is that defense.

The PMC is not a member of the HOA. They are only a contractor to the HOA. Whatever is in the contract the PM is to do is what they do. However that does not always translate into rule enforcement or knowledge.

WendyM5, I understand your concerns, but in my experience other legalities come massively into play here. E.g. a board majority wants to do xyz, and a board minority says, no, this is not lawful. The board majority refuses to agree to consult the HOA attorney.

Or a director has done something very legally wrong, and becomes what is called "an adverse party." This means this board member cannot have access to the advice of the HOA attorney unless a board majority agrees to this.

I think the best approach is to arrange for an attorney with a contract like what DeanJ and SheliaH described. I think CathyA3's and KerryL1's COAs have had similar approaches. In other words, this approach is catching on. Thank goodness HOA attorneys are figuring out that they spend a lot of time just educating boards. And with a good teacher-lawyer, AFAIC it is time well spent.

The PMC is almost certainly not a lawyer and the HOA is not their client. The PMC should understand the CC&Rs and whatnot, but they should not be giving the board legal advice or otherwise going beyond the scope of their contract. They can get themselves into a lot of trouble if the board acts on the advice and things go sideways.

I have managed hundreds of HOAs over many years and don't use attorneys. I use an attorney's website to provide opinions that over the years have worked just fine.

Well said. I agree with both points above.

I support putting such a statement in the bylaws, because who can talk to the HOA attorney and so cause billable hours is often a matter of dispute.

To Dean's point that's why our contract with our current & previous --because the attorneys wanted it-- specify only one "Board liaison" to contact or phone the attorney even for the retainer's "free" phone calls. So it's impossible for any director to contact him in any way without Board approval.

To actually incur expenses, which in our case usually involves interpretation of our gov. docs or state statute, Board approval is and always has been required.

If a Board wants to amend its Bylaws, which in CA requires USPS mail outs, secret ballots, inspectors of elections, etc., OK. But, with Tim, I think a board resolution/ decision setting such a policy is entirely satisfactory. On this forum I've never seen disputes about who may talk to the attorney/or about what.

I'd never approve that individual directors may contact the Assoc. attorney even at their own expense. This easily could involve a potential conflict of interest for the HOA attorney.