Stop me if this sounds familiar.
You are at a board meeting,or just talking over the nuances of community association law during your free time (weird), and you come to an issue you are not familiar with. Maybe it has to do with quorum, or revoking privileges, or enforcement of covenants, or even a new idea you have come up with to get tough on collections. You and the Board, and possibly your manager, say: “I wonder if we are allowed to do this?”
So you reach out to your trusted community association attorney. You say, “Counsel, is this legal?” You wait two weeks for your one-word, yes-or-no answer.
What do you receive? A four page opinion that amounts to “it depends.”
You and your colleagues are frustrated and perplexed. You shout:
Why can’t I get a straight answer?!
Well, there are actually several reasons (c’mon, I couldn’t make it too easy!).
Risk Averse
Lawyers are traditionally and stereotypically risk-averse. This is a sort of chicken-or-the-egg scenario: are they risk-averse because they are lawyers, or are they lawyers because they are risk averse? The world may never know.
But it is their job to avoid or minimize risk of liability where possible. So most lawyers will not go sticking their neck out there on a question – they are going to minimize the exposure to the client, regardless of whether or not the client wants to “play it safe.”
Legal Training
If you have ever been to law school, you know that the training of a lawyer is to look for and spot every issue or possible issue in a scenario presented. That training continues as an attorney becomes more specialized; the attorney will bring his experience, expertise, and accumulated knowledge to the situation to spot any potential issues down the road. So where you think you’re asking a simple yes/no question, that attorney sees a mountain of potential for liability, and it is his job to find each possibility (no matter how remote).
Churning
The attorney might just be padding his bill. Yes, I said it! Every client board suspects that its lawyer is nothing but a money-hungry shark looking to take a bite out of their budget. While I disagree with that, I must concede that there are lawyers out there who will take any opportunity to increase, inflate, or pad a bill. It is an unfortunate reality, but one you must be on the lookout for.
Malpractice
It might be legal malpractice not to give that four-page answer with all the possibilities in it! Imagine – you ask your attorney if your association can legally put a weight limit on pets. He says “yes.” You put that weight limit on, and you apply it to every single animal that comes into your community, including service animals, which is illegal under the FHA. You get sued, and you go back to your attorney screaming, “We asked you if this was legal and you said yes!” Not a good situation for anyone, and a potential case of malpractice by the attorney (or at least a claim) for failing to advise you of things to watch out for when setting up pet weight limits.
Self-preservation
Regardless of whether or not it would be actionable, an attorney is never going to want his opinion to have been wrong, unhelpful, or incomplete. A client may ask: “Can we foreclose on this debtor?” The attorney could say “yes.” Then the client could spend $6K going all the way through foreclosure, only to arrive at the auction sale and find out that the only way any of it will have any meaning is if they are willing to buy the property back at auction and either try to short-sell it or rent it out. While the answer of “yes” was technically correct, it’s going to lead to a lot of problems. A much better answer would have been: “Yes, but here are some pros and cons, as well as possible outcomes.” It is a longer (and even potentially more expensive) answer to be sure, but it will make certain that the client is actually receiving from the process what it was hoping to get.
You Didn’t Set the Parameters
Take another look at what you asked. Could the attorney have known, from what you sent, that your question was a quick, informal check-in? Did you present it as a serious issue you were considering, that suggested to the attorney he should provide you with all the various possible pitfalls? Maybe the attorney did exactly what it seemed he should do based upon your correspondence. Now is the time not to yell or complain, but to clarify.
No Simple Answer, or Answer Unknown
Frequently the answer to a question posed by a client is actually very complicated, or it is unknown. In that instance, the attorney is giving his best estimate or prediction of what the answer would be if it went to court. An excellent example of this is the recent case of Elvaton Towne Condominium Regime II, Inc., et al. v. William Kevin Rose, et ux., found here:
https://www.mdcourts.gov/data/opinions/coa/2017/33a16.pdf
Prior to that case being decided, if a condominium asked a community association attorney if it was legal to revoke privileges for nonpayment of assessments, they very well could have heard “yes.” But it turns out that the best answer to that question would have been hedged to say that no appellate court in Maryland had decided the issue, and that it was possibly legal and possibly illegal. The arguments in favor of it are that the Declaration and Bylaws give broad power to the Association; while the arguments against are that the Declaration does not contain that specific provision and it amounts to a taking of the property. But if you had gotten that opinion, correct as it may be, it still would not be a straight answer. As a client, you might well have been frustrated, despite the fact that the attorney just gave you the best possible answer given the information available.
Conclusion
There is not always a direct yes/no answer to be had. Ask your question in a way designed to get the type of answer you want. Pay attention not just to what or how much your attorney said, but also why they said it. And at the end of the day, if they didn’t answer your question, ask it again. Or put it another way – “so it may or may not be legal, but do you recommend doing it, and why or why not?”
Tell that attorney you are asking for an opinion and guidance, or you might end up with just a CYA letter from a risk-averse former law student.