Malpractice Risks of Community Association Lawyers: Avoiding Potholes

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1 Malpractice Risks of Community Association Lawyers: Avoiding Potholes Friday January 30, :20 3:50 PM Presenter(s): Joshua Bolen, Esq. Scott B. Carpenter, Esq.* *CCAL Member

2 ISBN: Community Associations Institute. Community Association Law Seminar 2015 Speakers/authors are solely responsible for obtaining all necessary permissions or licenses from any persons or organizations whose materials are included or used in their presentations and/or contributed to this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, audio, visual, or otherwise, without the prior written consent of the publisher. Inquiries should be directed to Community Associations Institute. Community Associations Institute 6402 Arlington Blvd., Suite 500 Falls Church, VA CAI assumes no responsibility for obtaining permission to reprint any previously published materials provided by speakers/authors for this event or this publications. All such responsibility lies with the contributing speaker/author. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. From a Declaration of Principles, jointly adopted by a Committee of the American Bar Association and a Committee of Publishers Printed in the United States of America

3 1/20/2015 Malpractice Risks of Community Association Lawyers: Avoiding the Potholes Scott B. Carpenter, Esq. & Joshua M. Bolen, Esq. Carpenter, Hazlewood, Delgado & Bolen, PLC Phoenix, Arizona INTRODUCTION 1.WHY IS OUR INDUSTRY SO UNIQUE IN REGARDS TO MALPRACTICE RISKS? 2.TODAY S INTERACTIVE EXERCISE A. Real Life Fact Patterns B. What Would You Do? (VOTE) C. Discussion D. Look to ABA Model Rules 1

4 1/20/2015 FACT PATTERN #1 OUT ON A LIMB Key Facts #1 1.Annual Meeting 2. Board President and Manager in a Dispute with Member Regarding Voting Rights 3.Need Your Opinion Right Now! 4.Manager is a Good Friend and Manages 10 Communities that You Represent 2

5 1/20/2015 W.W.Y.D. A. Say, I don t know, I need to look at the governing documents and proceed to pull all of the documents from your file to consider the matter in a corner of the room. B. Say, No community association ever got in trouble for allowing people to vote The owner can vote. C. Back up the manager and the President and say to the owner, I m sorry, you re delinquent in your periodic assessments, pursuant to the Association s policies, you will not be allowed to vote this evening unless you bring your account current D. Back up the manager and the President and say to the owner, I m sorry, you re delinquent in your periodic assessments, pursuant to the Association s policies, you will not be allowed to vote this evening unless you bring your account current but invite the owner to cast a ballot anyway that will be put in a different stack so that if the owner desires to challenge the result later, the votes of those disallowed from voting can be considered. E. I d do something different. FACT PATTERN # 2 OPPS I FORGOT TO CHECK THE ARTICLES 3

6 1/20/2015 Key Facts #2 1. Cumulative Voting Issue 2. President of Management Company Calls you for a Quick Phone Opinion 3. Your Opinion, Not Required. 4. Homeowner Files a Lawsuit 5. You Forgot to Check the Articles W.W.Y.D. #2 A. Immediately tell the Association Board and management company that you made a mistake and that the Board should seek to resolve the lawsuit as quickly as possible through settlement. B. Tell the Board and management company that the lawsuit is frivolous and you will win easily. C. Tell the Board and management company to tender the suit immediately to all insurance carriers for defense and indemnity. D. Inform the Board and management company of the realistic pros, cons and chances of success in the lawsuit if it is challenged vigorously. E. I d do something different. 4

7 1/20/2015 FACT PATTERN # 3 Meet the Management Company s Attorney Key Facts #3 1. Board Meeting 2. Parking Issues 3. Introduced as the Management Company s Attorney 5

8 1/20/2015 W.W.Y.D. #3 A. Politely smile, greet the directors, and discuss parking. B. Politely smile, greet the directors, discuss parking, and call the manager the next day to correct the manager on who your client is. C. Politely, smile, greet the directors, correct the statement by saying, Actually, I represent a number of communities managed by ABC Management Company, but I don t represent ABC Management Company. D. Politely smile, greet the directors, discuss parking, and call the owner of the management company the next day and correct the owner on who your client is. E. I d do something different. FACT PATTERN #4 Management Company in Trouble?...Better Call Scott 6

9 1/20/2015 Key Facts #4 1. Management Company Lunch and Learn re: Changes in the Law Managers in Attendance 3. Owner of XYZ Management Company, Scott Saved XYZ on Many Occasions if You ve Gotten Yourself in Hot Water call Scott First. W.W.Y.D. #4 A. Smile, accept the compliment, and proceed to discuss changes in the law. B. Smile, accept the compliment, and make a joke about the statement that validates the impression left by the President of XYZ. C. Smile, but tell the audience that over the years you ve had several successful results but that there is no way any attorney can guarantee that a get out of jail free card can be played in every situation. D. Smile, but tell the audience that, although you ve had some good results in the past, the best defense against potential liability is implementing good, sound, legal practices in every community. E. I d do something different. 7

10 1/20/2015 FACT PATTERN #5 MANAGEMENT THEFT Key Facts #5 1. Your Largest Master Planned (10% Revenue) 2. Managed by Largest Management Company (30% of Revenue) 3.Treasurer Calls You to Inform You that Manager Stole $40, Board Called Emergency Meeting this Morning and Voted for You to Demand Money Back and Terminate Management Company 8

11 1/20/2015 W.W.Y.D. #5 A. Comply with the Board s wishes and send the demand letter before Noon. B. After completing the conversation with the Treasurer, immediately call the owner of the management company to say, You re in trouble here and I m not sure what I can do to stop this from happening, but I ll do what I can C. Say to the Treasurer, I need to meet with the full Board before I do anything on this D. Tell the Treasurer that you do not represent the management company, but you work closely with the management company on this and other associations, and that you would not want the Board looking back six months from now and wondering whether you were as aggressive as you should have been and offer to call the owner of the management company to try to work it out, but decline to send a demand letter to the management company. E. I d do something different. FACT PATTERN #6 MANAGEMENT THEFT V.2 9

12 1/20/2015 Key Facts #6 1.Same Facts as Previous, but 2. Five Years Prior, You Reviewed the Standard Contract for XYZ Management. W.W.Y.D. #6 A. Comply with the Board s wishes and send the demand letter before Noon. B. After completing the conversation with the Treasurer, immediately call the owner of the management company to say, You re in trouble here and I m not sure what I can do to stop this from happening, but I ll do what I can C. Say to the Treasurer, I need to meet with the full Board before I do anything on this D. Tell the Treasurer that you have a conflict of interest due to the fact that the management company is a client of the firm and refer the Treasurer to another community association attorney for the task of dealing with the dispute with the management company. E. I d do something different. 10

13 1/20/2015 FACT PATTERN #7 Management and Association Named in the Same Lawsuit Key Facts #7 1. Faxed a Copy of a Lawsuit Served on the Management Company. 2. Your Client, the Association, is Named. 3. Management Company is also Named. 11

14 1/20/2015 W.W.Y.D. #7 A. Proceed to defend your community association client and the management company and bill the community association for all the work. B. Ask to see the management agreement between your community association client and the management company to render an opinion on the community association s obligation to defend and indemnify the management company. C. Provide a letter to the Board, c/o the management company that states, tender this suit to all insurance carriers for defense and indemnity. And also states that if the management company tenders the suit to the association for defense and indemnity under the management agreement, you would be happy to provide an opinion on that issue if the management company raises it. D. D. Send a letter to the Board, directly and not c/o the management company, urging the Board to tender the suit to its carriers for defense and indemnity, but do not address the issue of the management company being sued one way or the other. E. I d do something different. FACT PATTERN #8 Management and Association Named in the Same Lawsuit. You Are Hired to Represent Both. 12

15 1/20/2015 Key Facts #8 1. Same Facts as #7, but You Draft an Opinion to the Association that the Indemnity Language in the Management Agreement Requires the Association to Indemnify the Management Company. 3. Advise the Association to Tender to All Carriers. 4. D&O Carrier Hires You to Defend Both Management and Association. W.W.Y.D. #7 A. Accept the dual representation, bill the insurance company, and hope you resolve the case before the insurance carrier withdraws the defense. B. Inform the insurance carrier that, due to the allegations in the complaint, the best defense for the Association is to blame the management company and decline to be retained by the insurance company on behalf of both the association and the management company. C. Inform the Board that the insurance company has offered to retain you on behalf of the Association and the management company and seek the Board s consent, after consultation, to such an arrangement. D. Inform the Board and the management company that the insurance company has offered to retain you on behalf of the association and the management company and seek both of their consents prior to undertaking the dual representation. E. I d do something different. 13

16 1/20/2015 QUESTIONS 14

17 MALPRACTICE RISKS OF COMMUNITY ASSOCIATION LAWYERS: I. INTRODUCTION Joshua M. Bolen, Esq. and Scott B. Carpenter, Esq. of Carpenter, Hazlewood, Delgado & Bolen, PLC Tempe, Arizona Most lawyers have an easy time understanding who their client is and who gives the lawyer his or her direction it is most likely the person that hired them. It is the owner of a cake business that needs the lawyer to review a lease, it is the person who was in a car accident that sustained serious injuries, it is the employee that wants to sue his or her former employer, it is the husband or wife in a divorce case, or it is the person arrested for a DUI. The correlation between lawyer and client is easy for them. For community association lawyers, it is not so easy. A community association lawyer represents the corporate entity that is the association. This is easy. A community association lawyer has the same obligations and duties as any other corporate lawyer. This is also easy. He or she advises the board of directors on standard governance issues, the dayto-day business risks and liabilities, and sometimes the lawyer must address employment and other corporate issues. However, there are unique issues that only a community association lawyer must face. A community association lawyer routinely files lawsuits against the members of the corporation, the association attorney may take direction from a managing agent or third-party on behalf of the board of directors for the corporation, and either all or some of the members of the PAGE 1 OF 18

18 board of directors change on an annual basis. These factors can lead to extreme volatility between association constituents and the lawyer, conflicts of interest and the appearances of impropriety between the lawyer, the board, and management company, and lawyer may not always wish to act in the best interest of the corporation. These are real life struggles of the community association lawyer. In this manuscript we will to explore and discuss eight real fact patterns that association lawyers tackle on a day-to-day basis. We will also look to the ABA Model Rules of Professional Conduct for guidance and direction in addressing these unique issues. Finally, we will offer potential solution on how association lawyers can address these ethical dilemmas and avoid disiplinary action. II. ABA MODEL RULES OF PROFESSIONAL CONDUCT THAT EVERY COMMUNITY ASSOCIATION LAWYER MUST KNOW. Rule 1.1: Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.4: Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and PAGE 2 OF 18

19 (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.3: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.6: Confidentiality of Information (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.7: Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or PAGE 3 OF 18

20 (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 1.9: Duties to Former Client (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. PAGE 4 OF 18

21 Rule 1.13: Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of PAGE 5 OF 18

22 those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. Rule 2.1: Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. Rule 3.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. Rule 4.1: Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or PAGE 6 OF 18

23 (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Rule 4.3: Dealing with Unrepresented Persons In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. Rule 4.4: Respect for Rights of Third Persons (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. PAGE 7 OF 18

24 SPOILER ALERT!!!!!!! If you plan on attending this seminar in-person, please do not read further until after the seminar. The seminar will be interactive with each audience member supplying an answer to a series of fact patterns. After we receive your answers, we will be discussing how you as a community association lawyer would have or has handled these unique ethical dilemmas. PAGE 8 OF 18

25 III. QUIZ 1. As Association counsel, you are asked to attend an annual membership meeting to discuss pending changes to the governance documents being voted on by the members. You are familiar with the project you ve been working on, but do not know the governing documents intimately. In a corner of the room, a dispute erupts between the manager, the President and an owner. They motion you to come over. When you arrive, you find that the manager and President have already told the owner that he cannot vote at the meeting on any matter due to an assessment delinquency the election of directors or the governing document amendments. The owner insists that the action to disallow the vote is improper. The manager and president look to you for the answer. Before you consider your response in the above hypothetical, consider that you ve been working on this manager and management company for 2 years to refer more community associations to your law firm. This governing document revision project is the first project the company has sent your way, and you ve been explicitly told that it is a test to see of you can provide great legal services efficiently, and for a fair fee. You know that this manager alone manages 10 communities, and has great pull within the company that manages 200. Now back to the hypothetical. Do you: A. Say, I don t know, I need to look at the governing documents and proceed to pull all of the documents from your file to consider the matter in a corner of the room. B. Say, No community association ever got in trouble for allowing people to vote The owner can vote. C. Back up the manager and the President and say to the owner, I m sorry, you re delinquent in your periodic assessments, pursuant to the Association s policies, you will not be allowed to vote this evening unless you bring your account current D. Back up the manager and the President and say to the owner, I m sorry, you re delinquent in your periodic assessments, pursuant to the Association s policies, you will not be allowed to vote this evening unless you bring your account current but PAGE 9 OF 18

26 invite the owner to cast a ballot anyway that will be put in a different stack so that if the owner desires to challenge the result later, the votes of those disallowed from voting can be considered. E. I d do something different. Model Rules to Consider: 1.1, 1.3, 2.1, 3.1, 4.1, and 4.4. Recommendation: A lawyer must act in the best interest of the corporation with the competence and proper care. Because the client is the corporation, the attorney should ensure that his or her answer is correct. Failing to do so could expose the corporation to liability. The lawyer also has an obligation to ensure that he or she is not making a false statement to a third party. Therefore, the best answer is A. The lawyer should not give an answer until he or she has the opportunity to review the governing documents. If after reviewing the governing documents the lawyer discovers that the board president and manager were incorrect, the lawyer should immediately inform them of this discovery and determine a tactful and proper way to count the vote. 2. As association counsel, you are asked to render an opinion on whether the Association is obligated to allow cumulative voting at the annual meeting. The law of your jurisdiction provides that cumulative voting is proper if it is in the governing documents and that it is not proper if it is not in the governing documents. You ve just been called by the President of the management company who tells you that factions within the community are forming around whether the management company should be retained or terminated. You ve been told that the Board does not want to allow cumulative voting and neither does the management company. You pull the file while on the phone, flip quickly through the governing documents, and render a quick opinion that cumulative voting is not required. The meeting proceeds and cumulative voting is not used. A lawsuit is filed within a week after the annual meeting challenging the decision on cumulative voting. The lawsuit alleges that a provision of the Articles of Incorporation the document you did not spend any time reviewing because in your jurisdiction, cumulative voting is found in the Bylaws 99.9% of the time required that the Board provide for cumulative voting. Do you: PAGE 10 OF 18

27 A. Immediately tell the Association Board and management company that you made a mistake and that the Board should seek to resolve the lawsuit as quickly as possible through settlement. B. Tell the Board and management company that the lawsuit is frivolous and you will win easily. C. Tell the Board and management company to tender the suit immediately to all insurance carriers for defense and indemnity. D. Inform the Board and management company of the realistic pros, cons and chances of success in the lawsuit if it is challenged vigorously. E. I d do something different. Model Rules to Consider: 1.1, 1.4, 1.3, 1.6, 1.13, 21 and 4.1. Recommendation: The lawyer must inform the client of his or her mistake immediately. Not only is this the required practice under the model, but getting in front of an issue may save the lawyer the client with his or her honesty. 3. You attend a Board meeting to discuss parking on the streets with the Board at the request of the community manager. The manager who asked you to attend introduces you by telling the Board of Directors the following: This is Josh Bolen. He s ABC Management Company s attorney, and he helps us with all of our communities Upon hearing that, do you: A. Politely smile, greet the directors, and discuss parking. B. Politely smile, greet the directors, discuss parking, and call the manager the next day to correct the manager on who your client is. C. Politely, smile, greet the directors, correct the statement by saying, Actually, I represent a number of communities managed PAGE 11 OF 18

28 by ABC Management Company, but I don t represent ABC Management Company. D. Politely smile, greet the directors, discuss parking, and call the owner of the management company the next day and correct the owner on who your client is. E. I d do something different. Model Rules to Consider: 1.13 and 4.1. Recommendation: Community managers make mistakes. The lawyer of the Association has an obligation to communicate this mistake to the Board to ensure the board understands who the lawyer represents. Specifically, Rule 1.13(f) states that in dealing with an organization s directors or officers, a lawyer shall explain the identity of the client. 4. You ve been asked by XYZ Management Company to speak to 35 of their managers at a lunch presentation on changes in the law. At the lunch, the owner/president of XYZ Management Company introduces you by saying, Scott Carpenter has been a friend of XYZ for many years. He s saved us many times over the years. If you ever need someone in the trenches with you because you ve gotten yourself in hot water in a community you manage, please call Scott first. Do you: A. Smile, accept the compliment, and proceed to discuss changes in the law. B. Smile, accept the compliment, and make a joke about the statement that validates the impression left by the President of XYZ. C. Smile, but tell the audience that over the years you ve had several successful results but that there is no way any attorney can guarantee that a get out of jail free card can be played in every situation. PAGE 12 OF 18

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