Page 13 - New England Condominium June 2021

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -JUNE 2021 13 YOUR BOARD’S ATTENDANCE IS NOT REQUIRED. BUT IT SHOULD BE. BOSTON CONVENTION CENTER, BOSTON — TUESDAY, NOVEMBER 2, 10-3:30 FREE REGISTRATION: NE-EXPO.COM THE NEW ENGLAND CONDOMINIUM EXPO 2021 WHERE BUILDINGS MEET SERVICES it up thusly: “The best relationship will be one where the attorney operates as a corporate/business attorney in the first instance, guiding and educating, in the hopes of protecting the board, and in addition handles legal matters. Unfortu- nately, too often boards are difficult to control, and/or their membership act like vigilantes. They rarely see the benefit of \[proactive\] legal engagement and only call in counsel as needed. Keeping this in mind, and the scope of condominium and co-op representation, I look for ways to encourage a board to find a different way of looking at their operations. This type of arrangement allows for the process of putting their house in order resulting in best relations all around.” Ethical Issues Kirsch explains that “ethical issues arise in communications, as well as rep- resentation. First, an attorney should per- form a ‘conflicts check,’ to make sure no association client or board member is in conflict with any other client — includ- ing service providers that might perform work for the association. Also, we must be certain that the attorney has no personal issue, involvement or preference over a matter they are handling.” Piekarsky again stresses that “the cli- ent is the association, not the board. At- torneys report to the board as an entity. There has to be confidentiality. When we discuss personnel and collection is- sues and the like, we need to know that the board understands how confidential this is. They can’t tell other people. If a board member has a personal legal issue, the attorney needs to tell that board mem- ber that he or she as the attorney for the association or corporation can’t handle it. If there is impropriety, the attorney needs to tell the board that as well. When in a confidential setting, there can be sensitive situations.” For an attorney representing a condo- minium association or a co-op corpora- tion, the biggest ethical issue is when a board member is the violator of the trust contrary to the building’s best interests a small condo association. They needed a between attorney and client. “That’s un- comfortable,” says Shapiro. “You have a efit the attorney. When a sponsor devel- close working relationship with board ops a building, they install a management reasonable and hired us. I look at it as a members, and they rely on you. Now company and often engage the building’s situation where they will need legal ser- someone among them is the violator. You attorney, at least initially. We often are vices from time to time, so why not serve have to put the ‘friendship’ aside. They chosen by boards to replace that initial them?” may fire you or recommend a change in counsel. We often recommend that course attorney, but your duty is to the associa- tion in its entity. You have to honor that. any self-dealing behavior.” You have to tell the whole board what’s going on if there is an impropriety.” Hakim makes an interesting point community. “I represented a group of unit ney. Perhaps someone not so experienced about the personal interactions inherent owners in an attempt to help them mount charges $275 per hour, and someone more in condo and co-op representation. “The a campaign against a 10-year seated board experienced charges $350. The inexpe- ethical issues are generally the same as that was using the same attorney \[for the rienced attorney might take five hours one may find in any matter, except that association\] who also represented two of to complete the work, where the experi- here with residential communities, the at- torney must walk a fine line to ensure that the advice he or she is giving is not skewed merely to appease those that hired him or her.” A Fine Line “The build- ing’s counsel does have to walk a fine line,” says Hakim. “We speak with the board and/or man- agement regularly, and it could easily be seen as favorit- ism — or worse. There should be as much communica- tion as is needed to make sure the day-to- day issues are addressed — no more and board unfortunately has ended up in some can help keep your association working at no less. Meaning, tell me the issues, and serious trouble having replaced the same its best.” I can tell you what type and amounts of for the same.” communication are needed at that point. There is no playbook, per se, and issues that may seem mundane on Monday can resources to keep an attorney on retainer. protect the rights of the community, not spin out of control and become problem- atic by Friday. No attorney should ever corporations are aware of that, and are vices to individual owners. provide advice that is intended to damage generally willing to make more affordable the community. An attorney being asked arrangements. “We tell them to call us for his or her recommendation should when they need us, and as you need us,” never, for example, provide advice that says Piekarsky. “We bill for services as we would likely steer the board to a decision go. I had a situation like this recently from or one in which would financially ben- of action to avoid even the appearance of tant question is how to pick the correct Kirsch offers a real-life example of how fees are controlled by many factors, in- corruption can seep into a residential cluding the level of expertise of the attor- the board members. These owners tried enced attorney requires three. Also, per- for years to get re- placements on the have to cover the overhead the $350 per board — however hour attorney has.” with the board, lawyer and agent mind there’s a difference between larger all in the prover- bial ‘bed together’ firms may sometimes — but not always, it was impossible. and many times don’t — get the work out We worked tire- lessly behind the personalized service. When it comes to scenes and mount- ed a campaign that ing who you are as a community and resulted in a tre- mendous turnout ney who concentrates in condominium that overthrew the law, and is not just a general real estate regime and seated attorney. When you hire a condo lawyer a new slate of of- ficers. Incredibly, all of the laws, statutes, and case law that despite accom- plishing this, the Having an attorney who is willing to take board chose to go the time to get to know your association with another large named law firm. This as different and distinct from all others Small Associations & Cost Smaller communities may not have the and complicated. Above all, it is meant to Attorneys representing associations and to insulate the board or provide legal ser- lien, and we gave them an estimate of the cost of the services. They found the fees Kirsch suggests that the more impor- attorney for the money. “Realize that legal haps the $275 per hour attorney doesn’t “Also,” Kirsch continues, “keep in firms and smaller firms. Although larger faster, smaller firms can give you more choosing an attorney, it involves know- what your needs are. \[Look for\] an attor- you are hiring someone who should know control condominiums and cooperatives. The attorney/client relationship in residential communities is both necessary n A J Sidransky is a staff writer and report- er for New England Condominium, and a published novelist. WORKING WITH... continued from page 9 “If a board doesn’t choose to accept our recommendations or to enforce rules, etc., you, as their counsel, can’t force them. You give them information, and they then choose whether to move on it.” — Ellen Shapiro