HOA Homefront — Who does the HOA attorney represent?

Q: Does the HOA attorney represent the board or the HOA? If there is a conflict in different sections of the CC&R regarding the HOA or the owner’s responsibility to maintain an item and the HOA’s attorney is consulted, who is their client?

PG, Huntington Beach

Q: Can an HOA’s General Counsel represent an HOA member against another HOA member on a personal matter, unrelated to that HOA’s rules, regulations, or CC&R? In doing so, the lawyer used information and testimony from the management company that would likely not have been available to other members of the community.

RS, Rancho Mirage

Dear PG and RS: The HOA’s attorney represents the HOA, not the board or the president, although the HOA speaks and acts through its board. HOA attorneys should not simultaneously advise the HOA and individual HOA members, the management company, or any entity doing business with the HOA. The HOA attorney should be able to be completely loyal to the HOA at all times. When the occasional dispute arises between the HOA and its management, the attorney should consider only the interests of the HOA, even though he knows that many of his client referrals come from managers. Frankly, this is where ethical rubber meets the road, and most reputable companies recognize this and don’t blame the lawyer for it. Sometimes, if the HOA is sued with its director or directors, the HOA’s attorney will defend them with the HOA. However, outside of these situations, the HOA’s attorney should only represent and advise the HOA.

Q: Recently, our Board of Directors decided to redraft the CC&Rs and Bylaws, and drafts have been sent to owners. Management announced that all questions for the lawyer must be submitted four days before the “municipal meeting”. Owners would not be allowed to ask questions or make comments at the meeting.

The draft documents were boilerplate and half of the items added did not apply to our building type or did not apply to our HOA. During the “town meeting” it was obvious that the board was surprised and wondered why the lawyer had included the irrelevant sections. At the “town hall”, the lawyer refused to answer the questions addressed to him and declared that these questions were covered by professional secrecy of the lawyer.

I had understood that the attorney was working for the HOA and not for the board members as individuals. Please clarify the attorney-client privilege between the HOA attorney and the HOA members.

HS, San Diego

A: Does this HOA forget that the purpose of a town hall meeting is to answer questions, take suggestions, and gain member support for documents? Without the lawyer answering questions, how do members gain the confidence to vote in favor of the proposed documents? As for the “privilege” claim, I disagree — you are members and the lawyer is not advising each of you individually, but explaining how drafting new governing documents is in the best interests of the association (which is different from your individual interests). The purpose of “public meetings” is to inform members and encourage discussion. Some threads are crossed here and I hope your community will straighten them out.

Kelly G. Richardson, Esq. is a member of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for its expertise in community associations. Submit column questions to [email protected] Past columns on www.HOAHomefront.com.