Article Courtesy of
The Daily Bulletin
By Kelly G. Richardson
Published October 2, 2022
Q: Does the HOA attorney represent the board or the HOA? If there is a
conflict in different CC&Rs sections regarding HOA or homeowner’s
responsibility to maintain an item and the HOA attorney is consulted who is
their client? — P.G., Huntington Beach.
Q: Can the general counsel of an HOA represent one HOA member against
another HOA member on a personal matter, unrelated to the rules, regulations
or CC&Rs of that HOA? In doing so, the attorney utilized information and
witness testimony from the management company which arguably would not have
been available for other community members. — R.S., Rancho Mirage.
A: The HOA attorney represents the HOA, not the board or the president,
although the HOA speaks and acts through its board. HOA attorneys should not
be simultaneously advising the HOA and individual HOA members, the
management company, or any entities doing business with the HOA. The HOA’s
lawyer should be able to be completely loyal to the HOA at all times. When
the occasional dispute arises between the HOA and its management, the lawyer
must only consider the HOA’s interests, even though they know many of their
client referrals come from managers. Bluntly, that is where the ethical
rubber meets the road, and most reputable companies recognize that and do
not hold it against the attorney. Sometimes, if the HOA is sued along with
its manager or directors, the HOA’s attorney will defend them along with the
HOA. However, aside from those situations, the HOA attorney should only
represent and advise the HOA.
Q: Recently our board decided to restate the CCRs and bylaws, and drafts
were sent to owners. Management announced that any questions to the attorney
were to be submitted four days prior to the ‘town meeting’. Owners would not
be allowed to ask any questions or make any comments at the meeting.
The draft documents were boilerplate and half of the items added were not
applicable to our type of building or not applicable to our HOA. During the
meeting, it was obvious that the board was surprised and questioned why the
attorney had included the irrelevant sections. At a ‘town hall’ the attorney
refused to address any questions directed to him and said that such
questions were covered by attorney-client privilege.
It was my understanding that the attorney worked for the HOA not the board
members as individuals. Please clarify the attorney-client privilege between
the HOA attorney and the HOA members. — H.S., San Diego
Q: Is this HOA forgetting that the purpose of a town hall meeting is to
answer questions, take suggestions and gain member support for the
documents? Without the lawyer answering questions, how do the members obtain
any confidence in voting for the proposed documents?
As to the “privilege” claim, I disagree. You are members and the lawyer is
not advising you individually but is explaining the rationale as to how the
draft governing documents are in the association’s best interests (which is
different than your individual interests). “Town hall” meetings are designed
to provide members information and foster discussion. Some wires are crossed
here and I hope your community gets those wires straightened out.