Board should set boundaries for its meddlesome attorney

Question: Our association’s attorney shows up unannounced and regularly schmoozes on our property with, for example, the new manager, an employee of the association. Uninvited, the attorney attends board meetings, saying, “There’s no charge” -- a situation approved by the board president. This attorney creates disputes where none exist and then offers to correct them.

Is the attorney trespassing on our common property? Does the board breach its fiduciary duty by allowing him, of his own accord, to conduct business with our employees? What happens if his “free” advice is wrong?

Answer: The board needs to take control of this situation before it results in association liability. Regardless of whether the attorney has a retainer agreement with the association, the board must instruct him to stop unilateral contact with vendors, such as your manager, and individual board directors.

The retainer agreement must make clear when, if at all, the attorney is permitted to contact individual board directors. This would not only curtail the unwanted contacts, it could also save the association money in the long run by avoiding unnecessary expenses.

Saying “there’s no charge” does not give the attorney an unfettered right to be on the grounds or attend board meetings. Association property is generally private property, and admission is not typically available to the public at large. Unless some specific permission for entry is given, as might be in the case of an attorney employed by the association, presence could be considered trespassing.

An attorney is responsible for the advice he gives, whether paid for or not. If the association relies on that advice and that reliance results in damages, then all the remedies available for malpractice or negligence are there for the association to exercise or not as it sees fit.

“Schmoozing” could equate to “doing business” with your employees; the attorney then could be interfering with the relationship the association has with those employees, subjecting the attorney to liability. At the very least, he is abusing his relationship with the association. His discussions should be with the board, either during a regular meeting or in executive session, and then only when asked.

The association’s management and/or employee contract may have named the manager as its agent, thus authorizing him or her to conduct business on behalf of the association, but that is not the same as the board giving consent to the attorney to discuss its affairs with that employee.

The attorney should not be giving advice directly to employees, and any advice given to the board that affects employees must be communicated to those employees by the board, not the attorney. The manager is the association’s agent and as such takes direction from the board.

When an association’s attorney inserts himself into the association’s business affairs without consent or request, it could be time to consider finding a new attorney.

Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or e-mail noexit@mindspring.com.