If You're My HOA's Attorney, You Represent Me, Right? (No, Not Quite.)
As a community association attorney, I attend a lot of homeowner meetings to discuss legal issues and provide education to boards and owners. I enjoy the opportunity to meet the people who live in my client’s communities. It’s always great to put faces to names and get a feel for the relationship dynamics that make themselves apparent in the meeting space. Often, I stand out as the only person in the room wearing a suit, and I quickly get introduced as the association’s attorney or “the board’s attorney” or simply “our attorney.” This introduction provides a chance for me to answer a question that many owners in the room have: Who do you represent, Suzanne? In fact, I try to answer the following questions, quickly and concisely, with any group of owners that I am meeting for the first time:
Who does the association attorney represent? My firm represents the community association entity, not its board of directors, any of the individual directors, the manager or management company, or the members of the association.
Who does the association attorney advise? My communication with my client typically occurs through the community manager and the board president. I advise the board, as the governing body of the association, on how the law applies and what action is recommended. An attorney-client privilege attaches to my communications with the board and investigation of matters that may result in litigation involving the association. I do not have the authority to waive the attorney-client privilege on my client’s behalf, though the board may choose to waive the privilege in certain circumstances.
How does the board receive and act upon legal advice? When I prepare an opinion letter to an association client, I prepare the opinion to advise the board. My opinions often provide an overview of the controlling law, recommendations for how to proceed, and information about strengths and weaknesses of different approaches. Because opinion letters contain legal advice and strategies that an adverse party, which may include an owner, may use against the association, I do not typically prepare opinions with the understanding that all owners will have access to them. Rather, the board receives the opinion and uses it as part of the decision-making process. The board may consider the legal opinion in a closed door, executive session and weigh the risks, liabilities and options available to the association. Most often, any decisions of the board then occur in open meetings and provide an opportunity for owner comment prior to the board vote.
Can I see a legal opinion if I’m not on the board? Sometimes owners ask to see attorney opinion letters, especially when the board decision is disputed. A common argument expressed by owners is that they should have access to the attorney’s opinion because they, in part, paid the legal fees. These owners are correct that the attorneys’ fees are usually included as a common expense of all owners, but that does not grant individual owners an automatic right to see the opinion letter. Representation of an entity client, like an association, does not impute representation to all of the constituents. If that were the case, by way of example, residents of a town or county could expect to see attorney opinions given to elected officials or staff. Even the association records statute recognizes that attorney opinions can be withheld from owners. This does not mean that associations should withhold all legal opinions from their members. In some cases, circumstances favor releasing attorney opinions to all owners. I recommend that my clients consult with me on when and how to disclose attorney-client privileged information to their members. At times, a redacted opinion letter can give owners the information they seek without revealing the privileged information that could compromise the association’s position.
As an attorney, it's important for me to know who my client is so that I can properly advise my client and not create conflicts of interest. But it's also important for my clients' constituents to understand who my client is. Hopefully this basic overview helps owners, boards, and managers who are having a hard time understanding where the line of representation is drawn.