Question: As board director of our homeowner association, I requested three documents from our manager concerning a baseless lawsuit filed by an association homeowner. Association attorneys refuse to provide litigation information to me, and this is the third time in a year I’ve asked for documents from the manager. In total I’ve requested 15 pages the entire year. The manager drags out every request, mostly giving me wrong documents so the request process starts all over again. These recent documents pertain to issues before the board. Directors aren’t allowed direct access to these documents filed in a notebook next to her desk that should have taken two minutes to retrieve and copy. She said she’d bring the documents to our next board meeting in 30 days, forcing me to wait to view them. The board vote took place that night; her delay prevented me from being fully prepared. Shortly thereafter, I obtained emails between the manager and association attorney. The manager claimed I was taking up association time “requesting too many documents.” The attorney instructed her to delay my requests until the next meeting and have other directors “put pressure on me to withdraw my request” and “document all my requests in the board meeting minutes” to make it look like I’m “monopolizing the staff.” The attorney instructed her to be certain to note I was “requesting these documents in order to leak the information to homeowners.” She advised, “The board should seek a court order to curtail my inspection rights as a board director,” saying nobody would notice if the manager “exaggerated the number of my requests to make it look more plausible.” She told the manager a “good way to get rid” of me was to “call homeowners and tell them about my outrageous requests” and to “make it look as though I’m invading homeowners’ privacy.” She advised to “do this before the election so homeowners would become enraged and vote me off the board,” followed by, “if all else fails, the manager should persuade a group of owners to remove” me. I have copies of these emails. Is this legal?
Answer: While both have contractual and legal obligations with the association, attorneys are held to higher standards than managers. Based on the behavior you describe, the manager’s interests are adverse to the association that employs her and this attorney’s professional judgment is contemptible. She lacks sufficient learning and skill in the legal services undertaken for your association.
Advising the manager to exaggerate the number of requests made, then seek a court order curtailing a director’s inspection rights, is dishonest and a conflict of interest. An attorney must not commit an act that reflects adversely on her honesty and trustworthiness. Pursuant to Corporations Code section 8334 “every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind.” “Shall” means “mandatory,” under Evidence Code section 11.
The attorney must not counsel or assist the manager to engage in conduct she knows is fraudulent or criminal. Encouraging management to control the election outcome while enraging owners to the extent they remove this duly elected director from the board breaches the California State Bar Rules of Professional Conduct.
Under Rule 3-110, a lawyer shall not intentionally, recklessly or repeatedly fail to perform legal services competently. Utilizing the manager to manipulate association operations, the attorney works against her association-client’s interest. She also interferes with the association’s business, perhaps attempting to gain an economic advantage against competitors. The attorney’s loyalty is to the client, not a third-party vendor manager.
The attorney shall not advise violation of any law, under Rule 3-210. Association minutes are prima facie evidence, according to Corporations Code section 7215. Instructing the manager to falsely memorialize your document request to “leak information to homeowners” into minutes is disgraceful. Contriving situations disparaging your reputation in the community where you live subjects the attorney, manager and association to defamation lawsuits. If the manager “exaggerates” the number of your requests, providing “evidence” of the same in connection with a court proceeding, this criminalizes the presentation of false or fabricated evidence, according to Penal Code sections 132 and 134.
Counseling and conspiring with a manager to destroy the reputation of a director performing due diligence in a fiduciary capacity violates the attorney-client privilege and ethical standards of confidentiality, under Rule 3-100.
It is the attorney’s duty to advance no fact prejudicial to the honor or reputation of a party or witness; not encourage either the commencement or continuance of an action or proceeding from any corrupt motive of passion or interest; and respond promptly to clients’ status inquiries and keep them informed. That’s according to Business and Professions Code section 6068.
This behavior is both illegal and unethical. As a vendor, the attorney must answer to the board; as an attorney, she must answer to the bar.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or email@example.com.