By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys
I recently posted to HOALAWBLOG an article entitled California HOA/Condo Owners Do Not Have The Right To Have Their Attorney Attend The Association’s Board Meetings — SB Liberty, LLC, v. Isla Verde Association, Inc. In that article, I addressed the question of whether homeowners have a right to have their attorney present at board meetings and addressed the Court of Appeal’s decision in the case of SB Liberty, LLC, v. Isla Verde Association, Inc. Based on this decision, we can definitively say that members do not have the right to bring their attorney to an association board meeting.
The Court ruled in SB Liberty that Section 1363.05 of the California Civil Code (now found in Civil Code Section 4925) specifically states that members may attend an association’s board meetings. This means that members cannot have their attorney, or any other nonmember, attend in their place.
We also recently posted an article entitled Oppose AB1720-HOA Members Should Not Be Able To Have Their Attorney Attend Community Association Board Meetings.
Here/below is my letter that I am sending to the legislature to let them know that I am opposed to AB1720 and with good reasons (and if you like my letter, follow this link for a similar one that I formatted for board members and managers to send):
TO: California Assembly Housing & Community Development Committee
As an attorney that represents hundreds of California homeowners associations, I am writing to let you know that I am opposed to Assembly Bill 1720 (Wagner). It mandates that California homeowners associations permit a member’s attorneys to attend, gather information, and perhaps speak on any item at association board of directors meetings.
Currently, the law does not permit a homeowner to have their attorney attend their association’s board meetings, as the Civil Code very clearly states that ONLY owners are allowed to attend the meetings. And this was the holding in the Court of Appeals decision in the case of SB Liberty, LLC, v. Isla Verde Association, Inc. Here are some additional reasons why I request you oppose this bill:
1. The bill assumes that all 50,000 California associations have an attorney when, in fact, they don’t. AB 1720 would likely cause many of them to hire attorneys to attend these meetings, as the board members would not feel comfortable meeting with the attorney without their own counsel present.
2. AB 1720 will result in associations having to raise the assessments levied on the members in order to be able to retain counsel to attend meetings.
3. Current law already allows five other opportunities for an attorney to represent members, including (1) writing a letter to the board, (2) an informal private meeting with the board, (3) internal dispute resolution, (4) alternative dispute resolution, and (5) litigation. Thus, AB 1720 is totally unnecessary. And what possible benefit is afforded to an owner to have their attorney come to the meeting? The board cannot likely respond to the attorney as the issue may not be on the board’s meeting agenda, as required by Civil Code Section 4930.
4. How are the volunteer board members supposed to respond to an attorney that comes to their board meeting? Are they to remain silent, or engage without the advice or assistance of counsel? Will they say something that can be used against the association later?
5. If an association does have legal counsel (and many do), the bill would cause the member’s attorney to violate the California State Bar’s Rules of Professional Conduct, which prohibits the member’s attorney from addressing the board without permission from the association’s attorney. (Rule 2-100)
6. In my many years of experience representing California community associations, I have found that members of boards of directors are receptive to receiving information from the members. The members can have whatever it is that they want their attorney to say to the board at a meeting in a letter. This would be the better procedure and would not require the association to incur the expense of having their legal counsel attend the meeting just to protect the board. I do not see the need for the bill.
Let me conclude by saying that I believe that AB 1720 will cause an unwarranted interference to proper and orderly board discussions, cause unnecessary expenditures by associations for legal fees, and will greatly intimidate volunteer board members who may have to face ad deal with a member’s attorney. Thank you for considering my position, and I hope you will oppose this bill.
Again, if you like the above letter, follow this link and download one that I have prepared to be sent by managers and board members.
David Swedelson is a condo attorney and HOA lawyer and a partner at SwedelsonGottlieb who represents hundreds of California community associations. David can be contacted via email: firstname.lastname@example.org