Q I am on the board of directors of our condominium association. One of the other board members is an attorney, and she has volunteered her services as legal counsel to our association. She has indicated that if we use her services, we can save a lot of money instead of hiring outside counsel. I have some reservation about using someone from inside the association, and would like to have your comments.
A There is an old expression that a lawyer who represents himself has a fool for a client.
I think it is a serious mistake for a condominium or a cooperative association to use resident owners in their professional capacity in place of outside professionals. Whether these professionals are lawyers, accountants or property managers, in my opinion there is an inherent conflict of interest that can create problems in the future.
First, it must be pointed out that just because one is a lawyer does not necessarily mean that he or she understands the growing and complex area of community association law. The legal field is quite broad, and lawyers have developed specialties to serve their clients better. A top-notch antitrust lawyer or divorce lawyer is not necessarily a good communication lawyer or community association lawyer.
But even if the lawyer specializes in community association law, I still have trouble with the concept that an owner also is representing the association. Decisions must be made and opinions given that should be based on total objectivity. Clearly, if a lawyer who lives in the building renders an opinion, he or she will be thinking about the impact of that opinion on himself or herself -- perhaps to the detriment of the rest of the association. There is nothing wrong with this. It is only human nature to be self-centered and to concern oneself with number one.
But when you are giving legal advice, you must give this advice honestly, objectively and impartially.
Let's look at the specific example you raised in your letter. One of the critical issues facing your association is whether the board of directors has the authority to enact a special assessment.
A legal opinion involving the interpretation of your condominium documents is required. If the lawyer who lives in the building renders an opinion on behalf of the association, I seriously doubt that she will be completely objective. As I have indicated, she certainly has the right to consider her own well-being while coming up with an opinion.
But more importantly, even if the lawyer truly is objective, regardless of which way her legal opinion goes, there will be those in the building who will object. The dissenters will use any excuse possible to challenge that opinion, and the first objection that certainly comes to mind is the potential conflict of interest.
It has been said that lawyers -- like Caesar's wife -- must be above reproach. To serve as counsel to your association -- albeit for no pay -- raises a suspicion of conflict, and this should be avoided at all costs.
This does not mean to say that the unit owner should be completely prohibited from any legal involvement with your association. To the contrary, boards of directors of condominium and cooperative associations should be able to tap all available resources within the building. Whether your members are accountants, doctors, engineers, plumbers or lawyers, there is (or should be) a place for them in your association.
I strongly recommend that this lawyer be made chairman of a legal committee, and she and other lawyers in your association can work with your outside counsel. Outside counsel should be willing to work with this legal committee, and various legal tasks can be delegated to that committee.
In the final analysis, your outside counsel will be primarily responsible for decisions made, but you can save money and get additional assistance by using your own association members in this capacity.
This discussion should not be limited only to lawyers. As I have indicated, all of your owners should be polled to determine their skills. Some can write newsletters. Some can help with the books and records of the association. Others can review financial matters and assist in developing next year's budget.
But it is strongly recommended that outside professional assistance be obtained.