Whom does the HOA attorney really represent?
by: Jean Winters, Esq. 2012 (Florida)
Many homeowners ask me,”whom does the association attorney represent”? They understandably believe that since part of their assessments pays the attorney, they should be part of a collective client. That is not the case. A corporate attorney represents the corporation, not the shareholders. That is analogous here. The association is a corporation and the association attorney represents the corporation, not an individual member or members collectively.
Similarly, what too many association attorneys forget is that the association attorney does not represent an individual board member either, or the board members collectively if it is not in the best interest of the corporation. The board acts for the association but the attorney has a duty of loyalty to the corporation.
This is where much goes awry with community associations. For example, how can an association attorney in good faith represent a specific sitting board in a recall election by other members? I have seen attorneys pull some pretty dirty tricks to thwart a legitimate recall. Representing the association in a recall is done all the time and condoned by the Division. It’s a conflict. How can an association attorney in good faith represent one board member who may be harming the association but who hired the attorney? I’ve seen this to an absurd extent – the attorney chased off anyone who asked legitimate questions, unwittingly enabling her to steal half a million dollars from the association. These are problems that arise regularly that I think create difficulties that do involve ethics – and more.
Possibly the most egregious I’ve seen was an association attorney who represented the board in a recall where the recall was indisputably valid, by a large margin. The attorney charged the association and defended the board – not the corporation – to argue clearly valid votes were invalid. This was an attorney who graduated from Northwestern University Law School – not a fourth rate law school. I was stunned. The Division did not fall for this and validated the recall. This lawyer was employed by one of the most prestigious law firms in the state and lost to a pro se litigant. Her argument was embarrassing, even to a layperson. This was not zealous representation of the corporation, nor was it in the best interest of the corporation. This attorney clearly had a conflict and ignored it, to further billable hours, despite how absurd her argument (including misquoting case law).
The association attorney does not represent the members. Remember, corporations are legal persons, distinct and individual. The problem with this construct is that community associations are unlike any other corporation and members have a valid interest in whether the association attorney represents the existing board member or members in a recall brought by other members. Our existing law does not recognize this, and the Division (DBPR) certainly does not.