Working with an HOA Lawyer Part II: Duties and Responsibilities

Coordinating with a Texas HOA/COA lawyer can be tricky.  Keeping costs down is a great goal, but board members often forget that they also have a duty to the members to make sure that things are done correctly, and that costs are not always smaller by ignoring the issue or having cheaper labor do the work. You often would not select the lowest bidder to do your open heart surgery, nor would you want a hospital administrator to do it either.  You similarly should let professionals in the legal arena do the legal work.

What is the difference between the duties of a board member, a lawyer and a property manager on a legal issue? 

The best way to ensure everyone knows their duties is to actually think about this question.  In the legal arena, not unlike any area of maintenance and system design, the best solution is to talk with the legal team about how they believe the duties should be allocated.  If you've hired a law firm with experience in advising in matters of property management, it should come as no surprise that perhaps they've seen duty allocations that work and those that don't.  Relying on that experience for a proposal is a great way to get the issues out in the open.  It should also be reviewed periodically, particularly if there is new property management, a new board or new legal counsel hired.

Specifically, though, the board members, the property manager and the lawyer all have different jobs to do, and some of this depends on the size of the operation.  Large condominiums in downtown areas will often simply have more legal needs than fewer single family units with little or no amenities.  The duties also vary based on the tasks and the risks.  The more likely the action is to be challenged by a member, the more likely you'll need everyone to be in on the discussion of duty allocation to avoid unintended consequences.

Duties of the Board

For the most part, board members should be similar to a board of directors, understanding the big picture, having a feel for the members' wills and desires, watching the finances, thinking long term.  They should be involved in the decision of what law firms and professionals to hire, since the law firm represents the Association and not the property manager or management company.

Duties of Property Management/Management Company v. Lawyers

Depending on the issue, typically the property manager should usually be administrators,  a messenger and facilitator.  Think hospital administrator and not surgeon.  They make sure people get paid, that messages get sent, that invoices are correct, that information is disseminated to the right people, assist in the administrative process, assist in enforcement of decisions, help maintain records, and ensure that meetings are properly scheduled and organized.

But property managers should not be the ones performing the "surgery".  Inexperience by board members (and property managers), and the desire to cut short term costs, often leads to property managers being asked by board members to perform tasks that they are ill equipped to handle.  Property managers are good at administration, but they are not trained as litigators, they don't know what decisions are and are not legally consequential, or whether procedures and decisions are subject to legal challenge.  The number of times a "small change to the documents", or a "quick letter to a resident about a dispute" has turned into thousand of dollars added in litigation has happened more times than many organizations like to admit. 

That said, your lawyers are not your property managers.  It is inefficient to have lawyers attend every board or member meeting that discusses purely private issues (like priority of location of landscaping, or whether money should be used to re-carpet the foyer).  It is equally not cost effective to have them approve every minor communication with members.  But they are still the professionals you're hiring to make sure your long term obligations to the members are appropriate exercised, and that decisions made will be binding and not futile wastes of time.   It should be a bright line rule in your community, particularly if the budgets are large, that all issues relating to a contractual agreement or litigation process (like assessment, foreclosure, settlement, contract negotiation/execution and contract disputes) should be communicated to the lawyer with the lawyer likely running "point".  All issues related to any establishment of new rules or change to the governing documents should be discussed and approved by counsel (if not drafted by them), well in advance of any voting or planned voting of same.  And any questions about procedure or interpretation of existing rules should be discussed with counsel.  There are more, but these are the biggies. 

But basically, board members take the temperature of the members, think strategically and long term, determine goals, and hire the implementers. Property managers assist in communication, implementation, coordination of the execution of the goals. The lawyers help assess the goals from a legal and risk framework, draft or review documents used to implement the goals, and control the legal strategy based on the "business" parameters set by the board.  And if in doubt as to whether the lawyer should be involved, ask them.  And if you don't trust them to ask, find another lawyer.


How should communication with the lawyer be handled?


This is different for different sized associations, and largely depends on the issues involved.   Typically the owners association, for time and convenience, treat lawyers like just another subcontractor being managed by the property manager.  While it is helpful to have property management often involved in decisions and strategy sessions, for a number of reasons treating lawyers like a subcontractor of the property manager is not advisable as a general rule.

One issue involves privilege protection and its potential waiver.  In Owner Associations, the privilege is "owned" by the Association, which means that discussions with lawyers and legal strategy decisions and its protection as privileged communications cannot be intentionally waived by a single board member (unless they are so authorized by a vote of the board).  But the further away the lawyer's communication is with the Association, and the more people not directly involved are included, the less likely the discussions will be privileged from discovery.  This can be a big deal in litigation.

In Texas, the legal communication privilege includes communications with contracted professionals that are not employees, but it is tenuous and can be waived, particularly if the communications are not with on-site management.  This is a complicated area, so lawyers should be consulted for your specific situation, but the safest route of communication to maintain privilege of the legal discussion with legal counsel is one in which the board at a meeting discusses it directly with counsel or sends the information directly to counsel without a go between. 


That being said, not every issue involves a large concern over privilege.  The more frequent concern of having a property manager solely control communications between the lawyer and the board is having the legal issue or solution miscommunicated (in either direction).  Just like a game of "telephone", as the message gets transmitted, it can get altered based on the understanding of the persons in the middle.  Wherever possible, if it is an issue that might involve a lawyer, it is often important enough to convey the instructions directly, and hear the response directly.  If entire attendance at a meeting with a lawyer is not possible/practical, we often suggest that an owner association have a primary point of contact as a "legal liaison".  This is typically the board president, but it does not have to be so.  For example, there are instances where lawyer/owners sit on an owner association board as a director, and they may be better able to transmit the instructions and serve as "translator" for non-lawyer members of the board.  Similar to having someone who understands building maintenance or "numbers" run those committees.

This is not to say that the property manager being involved, say, in the implementation of a new rule passed by the board, or scheduling/organizing the meeting to approve, may be very helpful and advisable.  There are many instances that property management may have information only known because they manage the property and talked to the residents, so this is properly a case-by-case discussion.


But the main point is that your association is paying for the experience, expertise and advice of a lawyer, as a board member you should have the opportunity (and may have the duty/obligation to the members) to hear that advice directly, have your questions answered in real time (to reduce costs), and maintain the privileged nature of those communications as much as possible to minimize the loss of privilege or the likelihood that the legal advice is miscommunicated / the parameters set by the board are miscommunicated to the lawyer.  And that means direct interaction between the board and the lawyer as much as possible.