What to do with lawyer's opinion

Without being specific for confidentiality reasons, what would you do in this situation.

You are a member of the board. Before you came on the board, the board requested the HOA attorney to give an opinion on the legality of a section of the CC&R. The attorney came back and said it was legal and stated the reasons. Now you get on the board and the president wants to use this opinion to take action the would use this section of the CC&R. However, you are an intelligent person who looks at the current laws, goes to seminars and uses this forum to learn as much as possible about HOA rules. You believe the attorney made an error in how the application of current law is being applied to the situation at hand. (You also believe the attorney has been wrong several times before.)

The president states the action can be taken because the attorney says it is ok. You say the attorney is wrong in the decision and the board should not take the action. Obviously you would vote no on the action.

The basic question is what else can/should you do? What would you do when you disagree with the attorney's opinions?

Robert,

I would call another HOA attorney's law firm and pose the question. Most will speak to a board member. If all else fails, I would pose my reservations to the attorney and ask him to explain to me his interpretation of the law. It's amazing what reasoning these attorney's can come up with. Some have quite a knack for thinking outside the box!

I think what happens in far too many instances is that the board members treat the attorney as though he's God -- all knowing and can do no wrong. Not so. They are as human as you and I. I would have no reservations in questioning their reasoning if I thought it sounded a little off or if I didn't understand where they were coming from. I don't put anyone on a pedestal! Of course before you question anyone you better be well versed in the law yourself otherwise you'll come off sounding like an idiot!

RobertG, I would make a motion at a Board meeting to get a second opinion. During the discussion phase I would bring up the concerns. If the motion fails you should make sure the minutes reflect you voted for getting the second opinion.

Robert G,
I am curious, how can confidentiality be broken by posting a statement of your CC&R's and asking if the text is valid?

But, all in all I agree you are doing the absolute right thing and if you handle it as Roger is suggesting, you can have your exception noted in the discussion.

But, wouldn't that break this confidentiality concern you have? If it is a matter for ES, how are you going to have your exceptions noted and request a second opinion? That would make your motion an actionable item and reportable in an Open meeting. Maybe none of this matters, I don't know.

to the various posters -

The reason I believe the lawyer is in error is based up 1) in one case I had gotten an opinion from another law firm on the subject before it ever came up and it was the opposite answer, 2) I have gone to classes given on how to run and HOA which discussed such topics, 3) I have gone to various lawyer's seminars in which such subjects have been generally discussed, 4) I have read newsletters by various local HOA lawyers that express similar views as mine, 5) I have posted or read results from this forum that have generally agreed. I think I have some non-legal reasons to believe I am correct.

The logic the lawyer has given in several cases defies any logic when thinking about the situation.

The board, especially the president has taken the position that since the lawyer says it is ok, then there is to be no more discussion and that will be the way things are done. As an exaggerated example, it would like a lawyer telling someone it is ok to run a red light so now that is what the board is always going to do, end of subject.

I could give a specific example for posters to review, but it has been done before and I didn't want to rehash an old subject.

I thank each poster for their opinions.

RobertG,
When a Board gets a legal opinion it shows good faith (CYA) but when it, as you stated, "defies any logic when thinking about the situation" then it is prudent for a Board to get a second opinion. Ultimately, it is the Board that is responsible for any actions taken, not the attorney who gave their opinion. Good business judgement is needed whenever a Board makes a decision. I hope you can convince the rest of the Board to get a second opinion even if the Board President disagrees.

Donna,
In general,
A member or a board member questioning the opinion of a lawyer hired by the HOA, I believe, should not be addressed with the Boeard/Preisdent denying the member and asking for proof. What kind of proof are you asking for and who defines the extent and content of that proof if provided. Surely an owner is deserving of more consideration than to be made to provide "proof." All the member is doing is questioning someone's opinion. You don't have proof the lawyer is right, why ask the owner to be be perfect and pay a lawyer knowing his opinions are not proof?
Clearly the President is not responsive to the council (members) and in addition he is not responsive to the Board member. A Board member has a duty and responsibility to adibe by the documents, but he does not lose his owner status being on the Board.

IMHO

Susan,

I wasn't suggesting calling the HOA's attorney. I was suggesting calling any HOA attorney to pose the question to. The Phx area is replete with HOA law firms, some with many attorneys on staff. Most are happy to speak to a board member or anyone representing an HOA and answer questions.

Donna,
Okay Sweet Talker.

I stand corrected, well not corrected exactly, but close enough.

I think what we want to say and don't: "If we are getting the straight poop, the Pres is acting like a beaurocrat or worse."

RobertG is RobertG, and I have no desire to change him. This is how he approaches things and I honestly think he knows enough to pick and choose from our comments what he thinks fit.

Power to the People!

I appreciate all the comments, even the ones I think are bogus! I believe it really points out that each of us must make our own mind on issues we care about and do what we think is best. Sometimes no action is even the best action.

I am not sure what I plan on doing and I think it has probably changed with the passing of time and comments entered. I would be happy to give feedback to those participating if desired but I don't want to drag this on and make it look like a personal drama on my part. I do think we can discuss more general issues on this forum and it benefits all.

I hope you really believe the good and right will prevail! That maybe true in the total sum of the universe, but not in my corner of reality.