FLS Friday Forum is a free write-in column authored by Brian R. Fellner on topics of law affecting community associations. To submit a question, email Mr. Fellner at bfellner@flslawyer.com. All posts are for informational purposes only and do not constitute legal advice. Only your individual attorney can provide assurances that this information is applicable or appropriate to your particular situation. Nothing hereunder creates an attorney-client relationship between any reader and the author.
“Should our HOA board communicate with the attorney for our Association directly, or through management?”
James, an HOA board member in Maryland
This is a fantastic and extremely common question. There are myriad factors and ways that these correspondences take place, but here are some of the key issues:
— A community association attorney is obligated to provide legal services to his/her client in the way that best suits the client; the parties can discuss amongst themselves to determine what that might be.
— Sometimes management wants to provide a streamlined communication and update to the Board.
— Boards have the opportunity to address legal issues in the course of their meetings; they may want to keep those issues off their plate until such meetings when they are ready.
— Sometimes management attempts to keep costs down by reducing correspondence with the attorney. (well-meaning to be sure! but if you have an attorney you trust, you should be able to (a) have confidence that the stuff you are paying for is worth the price, and (b) talk with that attorney on how to best shape your relationship to fit the association budget).
— Clients are entitled to several things from their attorney, including prompt correspondence, the ability to ask questions, and more.
— Occasionally, managers want to add in comments on what the attorney said based upon their years of experience and their well-honed expertise (you know who you are).
— Board are made up of several people with different schedules, different response rates, and different opinions. Plus board members join and leave the board, sometimes frequently.
The question ultimately comes down to preference. When you correspond with legal counsel directly through management, there are pros, including that your manager and attorney should work together to give you timely and streamlined correspondence. It will allow your manager to be more familiar with the ongoing work in your community, and will allow your board to receive information from one source consistently. It reduces your workload and makes your manager more functional.
The cons are: It adds a layer of distance. Your association may need practical and tailored legal advice; sometimes the games of “telephone” between board-manager-attorney can reduce the ability to do that. Also, this method potentially breaks the attorney-client privilege; not so important on most projects, which probably aren’t privileged anyway, but if you ever have anything that your board needs to keep confidential via the privilege, then it should go straight to/from the attorney. Finally, the attorney will on occasion need an answer from your Board on a certain question. When I ask directly I experience a better return rate; sometimes the ability to get a vote and answer and pass it back to me can lag when it goes through a third party. (as an aside: sometimes boards struggle with this matter generally. appointing a board legal liaison can help.)
Here I will editorialize just a bit: sometimes board members or managers can fall into the trap of viewing the attorney as just another vendor. There’s a company that picks up the trash, and one that mows the grass, and one that puts shingles on the roof, and one that does the legal stuff. And without sounding like your standard pompous attorney, it may be just a bit more complicated than that. Sometimes there is nuance or an argument to be considered, with some questions and answers to be exchanged. As Oscar Wilde never said, ’tis better to communicate well with thy HOA attorney before litigation starts, lest ye be overwhelmed with such communication after the lawsuit doth commence.
Ultimately, your association is the client, and your lawyer is obligated to provide legal advice. The goal is for your association to function like a well-run corporation, with a true general counsel legal advisor. If you are comfortable sending everything through management and it assists with your process/getting results, then explain that to your attorney. If there are highly intricate matters that need specific explanation, if you have cases where it might be better to hear it straight from the horse’s mouth (me being the horse in this analogy), or if you have cases where privilege may need to apply, perhaps you should hear it directly from counsel. There is no true right answer, and the policy can evolve and change over time as needs do. The best way to make use of professional advisors such as attorneys is a broad topic and one that your board will likely consider frequently during its existence. Consider the factors that matter most to you, and make an informed decision.