Working With Your Legal Counsel The Attorney/Board Relationship

For many, the function and relationship between the board of directors of a co-op or condominium community and their attorney is more or less opaque. Who does the attorney represent? Individual owners or shareholders can’t contact the community’s counsel for legal advice; if they need counsel, they must find one outside the community’s legal arrangements. So the community’s attorney isn’t there as a resource for residents. How about the board members? Technically, the answer is no there as well. While board members certainly may interact with the corporation or association attorney for community business, they cannot and should not approach the community’s counsel for personal legal advice. It’s the corporation or association that the community’s counsel represents.  He or she is there to protect the integrity and interests of the community as a whole and functioning entity.

Defining the Client

“The building’s attorneys are hired with the approval of the board, purely to advise the board and its managing agent regarding day to day matters and with the interests of the corporation or association as whole in mind,” says Mark Hakim, an attorney with Schwartz Sladkus Reich Greenberg & Atlas  in New York City.  “Attorneys for the building do not represent the board or the individual residents.  The board members are generally voted into office and manage the building with authority derived from the governing documents (e.g., the bylaws, lease, etc.) and applicable statutes. When requested, we advise on a myriad of matters, from day-to-day matters such as sales, leasing, house rule and other enforcement, to disputes, to negotiating contracts for management, repairs, alterations, telecommunications, etc. to attending to litigation and other similar matters, to attendance at annual and other meetings. That’s by no means an exhaustive list; it’s our responsibility to attend to all of their legal needs and concerns.”

“We are required to give advice — nothing more,” adds Ellen Shapiro, an attorney with Marcus Errico Emmer & Brooks, located in Braintree, Massachusetts.  “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.”

“The relationship between a board and their attorney should be professional and cordial,” says Scott Piekarsky, an attorney with Phillips Nizer in Hackensack, New Jersey.  “The relationship is for the benefit of the association, not the personal self-interest of board members. Sometimes board members don’t understand this relationship and how it functions. If they haven’t served on a board before or they haven’t worked in a corporate setting with an attorney, they may not know this.”  This relationship should be explained to all new board members when elected.

Sima Kirsch, an attorney specializing in community law in Chicago, sums 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. Unfortunately, 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.”

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