The sounds of silence: failing to publish legal opinion on illegal acts by HOA managers

If the guardians,  those disciplinary and oversight entities  protecting the integrity of the Arizona Supreme Court, which itself is the guardian of the integrity of the State of Arizona, fail in their duties and responsibilities under the Arizona Rules of the Supreme Court, what becomes of us?

Many of you are familiar with the old teaser, “If a tree falls in the middle of the woods, and there’s no one around, does it make a sound?”   Then, if a CAI member firm— an HOA attorney or manager — violates the law and the public is not noticed, did they really violate the law?  And, if there are events leading to the conclusion of abuse and a gross defect in the HOA legal concept, and the media fails to report them to the public, are there really serious defects in the HOA legal scheme? 

Readers of these Commentaries are aware of the serious charges made against a CAI member attorney in DC Lot Owners v. Maxwell & Morgan.  An awareness brought to the public’s attention not by public disclosure, as the records have been sealed by court order, but by a few individuals. 

Readers are now being made aware of the recent State Bar UPL Opinion, 12-01, issued in March 2012, relating to the legal acts that may be performed by HOA managers.  (This supersedes the 2004 UPL opinions previously reported here, and directly applies to HOA managers.  The opinion is based on an interpretation of Rule 31, Regulation of the Practice of Law, of the AZ Supreme Court Rules.)   

I am told that the UPL opinion is available, but not on the State Bar’s web page for UPL opinions, or on any State Bar web page.  Yet, its UPL opinion web page proudly declares,

The State Bar’s UPL (unauthorized practice of law) Advisory Committee now provides attorneys and consumers with non-binding written advisory opinions. The opinions interpret the UPL Supreme Court Rules and the Certified Legal Document Preparer Code.

These are the sounds of silence in HOA-Land.  These are the acts and omissions by the members of that unspoken alliance of No Negatives About HOAs.  These revelations are not the result of public disclosure, but by the efforts of a few individuals.   And these few individuals do not include members of the media.  

One can only conclude that the State Bar also has a public policy of protecting HOAs, and their attorneys and managers.

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Published in: on June 14, 2012 at 10:07 am  Leave a Comment  
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