Who Does “Our” Attorney Represent?

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An association's legal counsel represents the association, right? While it's true that an association's attorney represents the corporate entity, in practice it's not always that simple. Associations are typically made up of multiple directors, members, and one or more managers, making for a hodgepodge of personalities and opinions.

It is not uncommon for board members to disagree on what advice to seek from the association's legal counsel, or even whether to consult legal counsel on an issue. Any of these personalities are subject to change at any given time. Many times, a lawyer for an association is faced with the challenge of conflicting information and conflicting instructions. This can result in poor communication and ineffective legal representation. To better understand who the association's attorney represents, it is essential to understand who the association's lawyer does not represent:

1. The Association's attorney does not represent individual Board members.

With a board of directors, it's all for one and one for all! Confusion often arises among the board members, especially in the case where individual board members may not be seeing eye to eye. Because the association's attorney represents the corporate entity, he or she cannot represent the interests of one board member over any other board member. The board must act as a decision-making body under the terms of its governing documents and state law to seek and obtain legal advice and/or services. Because the association's attorney represents the association, which is run by the entire board of directors as a body, the association's attorney cannot agree to keep any communications with one or more board members confidential from any of the other board members.

A common misconception occurs when there is a director that has served on the board for a long time and has an ongoing working relationship with the association's attorney. In that scenario, it is sometimes incorrectly assumed that the attorney represents that individual more so than other members of the board. Although there is an attorney-client relationship between board members and the association's attorney, the client is actually the corporation, which is run by the entire board of directors.

2. The Association's attorney does not represent individual members of the Association.

Likewise, a common misconception among members of an association is that the association's attorney works for them because, as the argument is often made, the attorney's fees are being paid with the community's maintenance fund. This is simply not the case. The association's attorney can only do work for the association if such work has been approved by the board of directors on behalf of the corporation. Likewise, an individual homeowner would not be able to call one of the association's maintenance contractors and direct them to do work in the community without the board's prior approval.

Moreover, attorney-client privilege applies to any of the attorney's work product or communications made between the association's attorney and any board member or manager regarding association affairs. Such communications would generally not be considered as part of the Association's books and records.

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3. The Association's attorney does not represent the management company or individual managers.

In everyday practice, managers and association attorneys work closely together, sometimes on several different communities. Often, managers are asked to provide a list or recommend to the board attorneys in the area who are experienced in the realm of community association law. Often, that is a somewhat short list. As a result, many board members and/or association members may incorrectly conclude that the attorney is in some way connected or affiliated with the management company, or that the attorney represents the management company. There may be exceptions to this general rule; however, any affiliation between the attorney and the management company should be disclosed to the board so that the board may make an informed decision on who to use as the association's legal counsel.

So who gets to call the attorney for advice?

This is a question to be determined by the Board as a decision-making body. Although it is most effective for the association's attorney to meet with the Board and the manager together to discuss issues, that is not always feasible. And requiring the attorney to speak with each and every Board member and the association's manager individually would be too cumbersome and may result in conflicting information. An alternative, especially when dealing with routine matters, would be for the Board to appoint an individual Board member or the manager to be the contact person, or legal liaison, between the association and the attorney. That individual should be aware of his or her limitations, however, and only serve to facilitate communication between the Board and the attorney.

 

Source: Association Times
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