While there are many anecdotal claims of attorneys for HOAs acting unprofessionally and unethically, there are sufficient instances documenting such conduct. I have encountered and witnessed some myself. Few have been charged to my knowledge.
The most common, in my experience, is a violation of civil court procedure where the attorney churns the account, seeks many continuances, and raises dubious claims based on the extension of commonly accepted legal doctrine and terminology. Fortunately, I am not an attorney and need not concern myself with extending “professional courtesies” to my opponents.
The questionable conduct I am addressing can be found in federal rules and in various state 1) supreme court Rules of Professional Conduct, usually under Rule 42, E. R. 1.13, Organization as a Client, and 2) under Rules of Civil Procedure, Rule 11(b), Signing pleadings . . . Representations to the Court.
Rule 11(b) states (emphasis added), in short,
“By signing a pleading . . . the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:
“[I]t is not being presented for any improper purpose . . . or needlessly increase the cost of litigation . . . and other legal contentions are warranted by existing law or by a nonfrivolous argument . . . the factual contentions have evidentiary support . . . the denials of factual contentions are warranted on the evidence.”
Rule E.R. 1.13 states (emphasis added), in short,
“(a) A lawyer employed or retained by an organization [HOA] represents the organization acting through its duly authorized constituents [the BOD].
“(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action. . . that is a violation of a legal obligation to the organization [directors duties for example], or a violation of law . . . the lawyer shall refer the matter to higher authority in the organization.”
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I am quite pleased with the opinion by the Arizona Appellate Court in Arizona Biltmore Hotels Condo Assn v. Conlon (CACV 18-0709, June 23, 2020). This involved case of over 10 years, multiple parties, and 3 lawsuits dealt with a conflict of interest by the association’s president. He also owned several properties (a dual role conflict) subject to claims of who would get parking lot rental income.
My point of interest lies in the Court’s inclusion of a statement by the attorney for the association president in the 2013 lawsuit and used as evidence in the current case. Here we find a highly regarded law firm standing by its obligations under professional conduct and certification to the court, as above.
The president hired Cheifetz, Iannitelli & Marcolini, CIM, (now Iannitelli Marconi) on behalf of the association. “CIM soon raised concerns about the merits of the Association’s lawsuit and shared those concerns in a letter to [the president]” who did not pass the concerns to the board. As required, if CIM believed that there were serious concerns, it brought their concerns to the board a year later.
Now removed as president and still a director and still owner of the TCG firm in conflict, the Courted quoted CIM’s position in this president gone wrong case.
“CIM became frustrated with [the president/director] strategy and told him:
“Our duty is not to [TCG], it is to our client, the Villas Association, and the [condominium] community as a whole. As a member of the Board you have fiduciary duties. Given these fiduciary duties, we are at a complete loss to understand upon what basis you deem it appropriate to intentionally seek to sabotage the Board’s efforts to attempt to resolve the pending lawsuit with . . . . ”
The 2013 Court found the director guilty. It held “that [he] both breached his fiduciary duties and negligently misrepresented facts to the Association . . . controlled the information and did not make full and necessary disclosures.”
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FYI — The “Cheifetz” above is none other than Steve Cheifetz, former CIM manager now retired, with whom I’ve had the pleasure of knowing and exchanging views on HOA law and cases. He worked closely with Jonathan Dessaules, another outstanding Arizona attorney taking on homeowner cases.
HOA Constitutional Government 