Public speaking conflict: CAI attorney vs. HOA clients

It is well known that the national lobbying trade group, CAI, has its own agenda.  What we have never determined is whether or not that agenda is consistent with the views of the clients, the HOAs that the CAI attorneys represent.  It is also not uncommon for HOA board members to appear before the legislature or to speak out on proposed legislation.  What we have never determined is whether or not that the position of the board member is consistent with the views of the membership. I have never once heard a board member announce, with respect to his public position on legislation that he acts pursuant to a vote of the majority of the membership.  After all, isn’t the HOA supposed to be a democracy?

The point that I’ve raised in the past is that the board does not speak for the membership on public issues in absence of such a vote, and any such statements are an abuse of authority.  There is no grant of such public representation in any Declaration of CC&Rs, or in any statute or HOA Act in any state.  The astute CAI attorneys well know that!  Yet, they act as if the board represents the position of the membership on public issues, without first determining, after reasonable inquiry, if a vote of the membership so agreed with the board’s position.  Yes, the attorney can say that its client, the HOA as represented by the board, has taken such a position, but it cannot act in any way as if this is the position of the membership.  However, it has been my experience that these attorneys leave the impression that their views are the views of all HOAs and their members, whether currently represented, formerly represented, or never represented.

I am not saying that CAI attorneys cannot speak out, but they must be very careful of attributing or implying that the CAI agenda is also that of the HOA.  The safest  and most ethical route is to simply say, “I speak for the national trade group, CAI”.

In Oasis West Realty v. Goldman, pertaining to the right of an attorney to speak out on public issues — think advocating legislation — the CAL. appellate court held,

“These authorities stand for the proposition that a lawyer may take positions adverse to a client, as long as current representation is not compromised, something which does not concern us, and as long as confidentiality is not compromised. . . . We cannot find that by representing a client, a lawyer forever after forfeits the constitutional right to speak on matters of public interest.”

In the court’s discussion, we find legal authorities (excerpts are itemized below) with respect to attorney – client conflicts of interest, with a focus on speaking out on public issues (emphasis added):

1. Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process.

2. Our Supreme Court has also said that “`It is . . . an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent . . . . By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests.’

 3. “Loyalty to a client requires subordination of a lawyer’s personal interests when acting in a professional capacity. But loyalty to a client does not require extinguishment of a lawyer’s deepest convictions; and there are occasions where exercise of these convictions — even an exercise debatable in professional terms — is protected by the Constitution.”

4. [T]he Restatement (Third) of the Law Governing Lawyers, section 125. Section 125 provides that “Unless the affected client consents to the representation . . . a lawyer may not represent a client if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s financial or other personal interests.”   Comment b explains the rationale: “Personal interests of a lawyer that are inconsistent with those of a client might significantly limit the lawyer’s ability to pursue the client’s interest.” . . . Consent of the lawyer’s clients is not required.

5. “However, a lawyer’s right to freedom of expression is modified by the lawyer’s duties to clients. Thus, a lawyer may not publicly take a policy position that is adverse to the position of a client that the lawyer is currently representing if doing so would materially and adversely affect the lawyer’s representation of the client in the matter. The requirement that a lawyer not misuse a client’s confidential information . . . similarly applies to discussion of public issues.”

Read Oasis West v. Goldman, B217141, Cal.App.2 Dist., Mar. 3, 2010 at http://www.leagle.com/unsecure/page.htm?shortname=incaco20100303039

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Published in: on March 4, 2010 at 9:07 am  Leave a Comment  

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