Ask two engineers or two insurance professionals the same question. The odds are high you’ll get similar answers. The same goes for most professionals involved in this industry. The exception is with attorneys. But that doesn’t mean one attorney’s opinion is wrong and the other one’s is right.
The community association industry reminds me of the “Wild West.” New territories are being discovered and settled every day. The laws governing condos and HOAs are changing constantly in every state as well. The industry has the cart ahead of the horse. The cart is a mixed bag of complicated legal issues that boards need to manage. The horse (no offense) is an attorney trying to keep the cart on the road — or from being dragged off the road, depending on how you look at it.
That is why a community association board needs to look at their attorney as a tool — like the kind in tool boxes. They need to find the right tool for the right job. Sometimes you try one tool, and realize that maybe you should be using another one. Even condo/HOA attorneys have experience in different aspects of this multi-faceted industry. Some legal issues need a litigator, others benefit from someone specializing in contracts and documents. Furthermore — construction defects encompass an entirely different area — one on which many condo/HOA attorneys focus their practices. On top of this, there are transitions, and this combines knowledge of all these areas!
Complicated and perhaps unnavigated (or I should say litigated) legal issues can result in differing legal approaches, strategies and recommendations. It’s not always set in stone which approach will be successful. And attorneys all bring different experience to the table — even if they’re all condo/HOA attorneys.
Boards need to keep in mind that the word “opinion” is key to the term “legal opinion”. Many qualified attorneys will have different approaches to the same legal issues. Board members should not be afraid to ask questions and discuss alternative options when presented with their attorneys opinion. They should ask “is this an aggressive approach or an approach most attorneys in the industry would agree with?”. They should ask what are some of the other options, even though they may not be recommended. Getting professional advice is one of the basic best practices. However, just asking the attorney what to do without asking these questions, represents what I would call blind due diligence. Yes, you’re doing your due diligence by asking your attorney’s advice, however, by just accepting a single opinion, without questions, and then if necessary, further research, would give you a C- as a board member in my opinion.
If you’re not utilizing your attorney by having them communicate all the options, you may be not using this important association tool properly.
2022 02 15 AHN WEB