By David Swedelson, Senior Partner at SwedelsonGottlieb, Community Association Attorneys
On March 29, 2016, we posted an article regarding the SB Liberty, LLC, v. Isla Verde Association, Inc. Court of Appeal decision that confirms the law that only owners or members of an a California community association are entitled to attend association board meetings. Follow this link to review our prior post. As we stated in that article, it is not uncommon for a homeowner, usually disgruntled or in trouble with their association, to either want their attorney to attend a board meeting with them or in their place. Often, we hear about it after the meeting where the attorney appeared on behalf of their client and intimidated the board. The Court of Appeal confirmed that members do not have the right to have their attorney attend association board meetings.
Now, we want you to know that the legislature is considering new law that would allow an association member to bring their attorney to board meetings, which would make the foregoing case law no longer applicable. We and just about everyone in the community association industry oppose AB1720, and for good reason.
When an attorney comes to a board meeting for a client, they are there to be adversarial, as their client is paying them to communicate their position, which is typically contrary to the board’s position. (Why else would someone pay the attorney to be at the meeting?) If AB1720 becomes law, an owner’s attorney will be able to attend meetings and, during open forum, speak to the board. And as attorneys do, they will intimidate the board. Or, they could come to meetings to gather evidence to use in a lawsuit they plan to file against the association. We believe that this is wrong, as there is no reason for attorneys to attend a meeting. They can just as easily advocate their client’s position by sending a letter.
The proposed legislation does state that “[w]here possible, the member shall give the board at least 48 hours advance written notice that his or her attorney will attend the board meeting.” “Where possible.” Seriously! If an owner wants to ambush the board, they will find an excuse for not having given the 48-hour notice. And there is nothing that the board can do about the situation.
And we know that if notice is given, boards will want to have the association’s legal counsel present to deal with the member’s attorney. This will undoubtedly result in higher assessments for the members of the association, as the board will need to increase the budget for legal services.
There are several good reasons for opposing AB1720:
1. The bill assumes that all 50,000 community associations in California have an attorney when, in fact, they don’t (and 99% of associations do not have their attorneys attend the board meetings on a regular basis).
2. The bill will result in associations raising the amount of members’ assessments in order to have the money needed to hire attorneys to attend all meetings.
3. Current law already allows four other opportunities for an attorney to represent members with the board, including (1) an informal private meeting with the board, (2) internal dispute resolution (meet and confer), (3) alternative dispute resolution (usually mediation), and (4) litigation. And they can write a letter, as it is just not appropriate for a board to talk to an attorney without the association’s legal counsel present. AB 1720 is unnecessary.
4. Volunteer board members are (generally) not equipped to respond to these attorneys. Are they to remain silent, or engage without the advice of counsel? Will they say something that can be used against them later?
5. The bill violates the California State Bar’s Rules of Professional Conduct which forbid one party’s attorney from addressing another party without permission from that party’s attorney. (Rule 2-100)
CLAC states that AB 1720 is an unwarranted disruption to proper and orderly board discussions, causes unnecessary expenditures by associations, and will greatly intimidate volunteer board members. We agree.
David Swedelson is a condo lawyer, HOA attorney and a founding/senior partner at SwedelsonGottlieb, Community Association Attorneys. The firm represents associations. David can be contacted via email: firstname.lastname@example.org