Ethical issues with overzealous HOA lawyers

Speaking of what motivates most HOA defense lawyers, I get the feeling that they firmly believe any complaint against an HOA will constitute a crack in the dam.  They seem to act like a decision favorable to the member, especially on issues of substance and constitutional rights, will place HOAs on the slippery-slope to an outbreak of successful court decisions affecting the very survival of the HOA legal scheme as we now know it.

Consequently, they have adopted an attitude of a criminal lawyer whose client is facing the death penalty, and that they must act with all guns blazing in defense of their HOA client.  Any tactic and technique to save the HOA from its impending doom is ethical.  Even crossing the line at times as many of us have personally witnessed.

In 2005 I wrote about Arizona State Bar attorney, and former Chair of the Disciplinary Commission of the Arizona Supreme Court, David Dodge’s article regarding ethical considerations in aiding and abetting the clients (See HOA ethics: vigorous performance or collusion?).  He wrote,

However, the court said, the privilege of rendering professional services is not absolute, and lawyers should not be free to substantially assist their clients in committing tortious acts. The way to protect lawyers in these cases, the court suggested, was to strictly interpret the common law elements of aiding and abetting the alleged breach of a fiduciary duty, as found in the RESTATEMENT, which requires “substantial assistance or encouragement” by the lawyer

Dodge’s chief charge is that the lawyer “wrongly advised his client.” He warns the lawyers about,

non-clients to whom a lawyer can be liable, even in situations in which the client is not acting as a fiduciary. . . . Lawyers are now permitted to disclose facts that will prevent or rectify harm done by their clients to others while using the lawyer’s services.

Read “clients” as HOAs and potential “non-clients” as homeowners.

Do not be afraid of filing against the HOA attorney for ethical violations as set forth in your state’s Supreme Court Rules of Professional Conduct, Rule 42 with all its E.R.s (ethical rules).

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Published in: on June 5, 2017 at 6:13 pm  Comments (4)  

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4 CommentsLeave a comment

  1. You are right of course–to not trust them but you can’t trust the bar either. I had an unethical attorney and all the evidence of his wrong doing and the bar said they didn’t see a problem. He told the board one thing and the members another. IE in emails he told the board how to stonewall the members and wrote an open letter telling the members they had no case and he was dead wrong on the laws he cited. He told the board they did not have to honor our petition to replace the board (all done according to law), that they could rewrite the bylaws without our vote, that they could incorporate and NOT TELL US and change the voting rights. Clearly clearly he lied repeatedly to members about what the law said (I have his letters and copies of Utah code) Then he even wrote in a letter that the board did not have clean hands and may not win the lawsuit but that they had more money and how far would the members want to take it? We had 35 HOA members complain to the Utah Bar about this attorney and the Bar did not understand what our concerns were. I now have an attorney who filed over 30 illegal liens on our homes and I have the evidence on this too. Will I file a compliant to the bar on this? NO–they have his back.

    • I am aware of several such instances.

      It’s the old “professional courtesy” BS that one lawyer will not squeal on another, lest he be squealed upon in return. The more accurate name for state bars is The Benevolent and Protective Order of Attorneys, or BPOA. (Like BPOE stands for the Benevolent and Protective Order of Elks, a charitable organization).

      • Or Best Protect Ourselves Always
        {SMILE}

  2. George, you are right on target. It seems that the hOA defense lawyers specialize in “character assassination” when a homeowner stands up for their rights and goes to court. They do not treat homeowners standing up to the HOA in a fair manner. The second part is that they blow up a simple issue into a major case which seems to increase their billing hours or as a way to try to get the owner to give up and discourage them because it becomes so expensive.

    The name of the game for these type of HOA attorneys is to make the homeowner appear as awful as possible and they do not seem to care if their clients (HOA Boards and managers) are telling the truth or not. They do not care if they are hurting the owner as they try to destroy the owner that is standing up for their rights. In addition, they will turn the smallest incident or statement into something that was never meant if it suits their goal.

    These type of HOA attorneys are not above changing e-mails that will be produced as “evidence” that have been altered so homeowners beware that if you are asked about an e-mail which they question you about and you do not remember or recognize writing it, there is a high probability that the e-mail was altered. It is a dirty game they play against homeowners.

    The homeowner needs to be aware that not all HOA attorneys representing HOAs are honest or ethical. Very disappointing and they are a disgrace to the legal community. They tend to forget that all the owners pay their fees either directly from the HOA monthly dues or by part of their contribution of their monthly dues going towards the insurance premiums. For homeowners, my advice is do NOT trust the HOA attorney representing your community, tape them whenever you can, note each time they lie or misrepresent the truth or allow their clients (HOA Boards and managers or witnesses) to lie and be prepared to report them to the BAR.

    Be aware that if you have a deposition by one of these HOA attorneys that your community hires, they will consider you the enemy and they will pry into your private life, your neighbor’s lives, they will ask a lot of questions about what type of insurance you have (part of their goal is to see where they can get money from if they win and they will also ask about where you work and pry into what you own — it is their way of calculating where they can get money from). Watch out with your e-mails and who you correspond with, they will go after your e-mails and your neighbors. HOA attorneys who do not act in a proper manner should be reported to the BAR when they violate ethics and do not act in an ethical manner.

    In addition, they should be reported to insurance companies. Find out which insurance companies are insuring your HOA and report the HOA attorney if you do not believe they are acting in an ethical manner, purposely trying to make a huge case to increase their billings.


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