Saturday, January 23, 2010

CCAL Law Conference -- The Unauthorized Practice of Law

Yesterday afternoon, I attended a session on the unauthorized practice of law in community associations, with an emphasis on managers’ conduct.  The hypotheticals were fairly predictable; sales contracts by realtors, interpretation of governing documents and the biggie – managers preparing and filing liens.  Richard Ekimoto pointed out that the unauthorized practice of law constitutes a civil and criminal offense in all 50 states.

Now, the focus has shifted to the aiding and abetting of the unauthorized practice of law – the first question, does an attorney aid and abet by preparing a “standard form” for managers’ use?  This isn’t an issue for me, in light of my declination of representation of management companies, but I have no doubt that my forms are being used as “forms” (and modified) by managers and associations alike. 

Richard Ekimoto is telling about having been informed that a management company that he once worked with who admitted to having had a binder full of opinion letters from his firm and others, for review and use by managers within the office.   Needless to say, there are some real problems with that, the least of which is the obvious breach of the attorney/client privilege associated with that conduct.

The audience is suggesting there’s a trend for managers to get more aggressive in their marketing of legal services.  An Arizona manager who apparently asked a question at last year’s seminar is posting materials suggesting that he “spoke at the College of Community Association Lawyer’s seminar.”

Now there’s a backlash from managers who assert that they’re constantly put into an untenable position of being asked to answer legal questions, but told not to call counsel for the answers.  Fortunately, the moderator brought that discussion to a halt before you (and others) heard about it (and the ensuing brawl) on the evening news…

A couple of other points quickly presented as the seminar draws to a close:

·      The presence of counsel at a meeting will, if appropriately handled, allow for the protection of candid discussions under the cloak of the attorney-client privilege.

·      An association board that relies upon the advice of an appropriate professional will be protected by the business judgment rule, regardless of the wisdom or advisability of the ultimate decision.  The business judgment rule focuses on the procedure associated with decision making rather than the substance of the decision.

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