I am on the board of directors of our condominium association. One of the other 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 by not having to hire outside counsel. I have some reservations about using someone from inside the association and would like your comments.
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 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, just because someone 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 broad, and lawyers have developed specialties to serve their clients better. A top-notch antitrust lawyer or divorce lawyer, for example, is not necessarily a good communications or community associations lawyer.
But even if the lawyer specializes in community relations 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 objective.
Clearly, if a lawyer who lives in the building renders an opinion, he or she will be thinking about the impact on his or her interests, perhaps to the detriment of the rest of the association. There is nothing wrong with this. It is only human nature to be concerned about oneself. But when an attorney is giving legal advice, it should be honest, objective and impartial.
Let's look at the 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 interpreting 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.
But more important, even if the lawyer truly is objective, there will be those in the building who object, regardless of which way her legal opinion goes. The dissenters will use any excuse to challenge that opinion, and the first objection that comes to mind is the potential for a conflict of interest.
It has been said that lawyers 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 that the unit owner should be prohibited from any legal involvement with your association. To the contrary, boards of condominium and cooperative associations should 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 recommend that this lawyer be made chairman of a legal committee, and that she and other lawyers in your association work with outside counsel. The outside counsel should be willing to work with the committee, delegating to it various legal tasks.
In the final analysis, make one outside counsel primarily responsible for decisions, but you can save money and get additional assistance by using your association members' expertise.
This approach should not be limited to lawyers. 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 annual budgets. But I strongly recommend that outside professional assistance be obtained.
Benny L. Kass is a Washington attorney. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed, stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.