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HOA Homefront – Questions from readers – Who contacts the attorney?

Q: Several years ago, the board of directors asked for an explanation regarding our statement. The council wanted to know his authority regarding certain issues within the development. The association’s lawyer analyzed our CC&R and issued a response. Since this analysis and the resulting letter are general in nature regarding our association, is this considered attorney-client correspondence and privileged communication with counsel only? Do members have a right to see these clarifying communications, since the attorney was providing this information to the board and director, as the association’s attorney.

JH, Manteca

Q: I swear you must have a direct line to our HOA! It seems like every week you shine a light on issues that our board has mishandled. During a disastrous CC&R/Rules change, the board refused to give us a red line, hold a town hall meeting, or simply identify the changes, so I called the HOA attorney. The council sent a letter to all owners stating that the solicitor was representing the council and that the owners were not allowed to speak to the solicitor. What is your definition of “HOA”? If it is the members AND the council, our council says that the lawyers represent the council exclusively. I really appreciate all of your insight.

JN, Irvine

A: JH and JN: The client of the HOA lawyer is the association, not the board of directors or its members. Thus, opinions are presented to the association, which speaks and acts through its board of directors. The lawyer-client privilege is between the association and the lawyer, not between the members and the lawyer. This was recognized in the 2000 appeal decision Smith v. Laguna Del Sur Villas, which ruled that individual members had no right to access the opinions of HOA attorneys. Thus, individual owners cannot force the HOA to share the attorney’s opinions or recommendations.

However, there are times when the lawyer provides opinions clarifying the rights and responsibilities of all owners, opinions that can be helpful to anyone. In some circumstances, I find myself writing opinions to the board knowing that the board, in its service to its community, plans to share my opinions with the general membership. I agree that sometimes, even though the council may keep the lawyer’s input confidential, the lawyer’s opinions are useful to the whole community and should be shared.

A similar circumstance occurs in projects to rewrite guiding documents, as in the association of JN. During the attorney’s work on creating new incorporation documents (CC&R and Bylaws) for the HOA, if the board prohibits the attorney from explaining them to the members, how could the documents be approved by the members ?

Solicitor-client privilege protects associations from disclosing confidential advice regarding disputes and claims, but at other times the advice is more general in nature and transparency is helpful to the association and can help the community understand legal principles.

There is no clear line rule here. Associations and their councils should discuss when advice is useful to everyone and can be shared.

Also, not everyone should be able to contact the lawyer. Usually the manager and a designated director are my HOA points of contact, but I prefer to copy the entire board with my advice.

Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and a senior partner at Richardson Ober LLP, a California law firm known for advising community associations. Submit column questions to [email protected] Past columns on www.HOAHomefront.com.