Selecting an attorney is one of the more significant decisions made by the board of directors for a community association. Often times, the association makes its decision based upon price alone. Although “price” is a valid factor to consider, there are other important factors the board should review during its selection process. This article addresses three of the major considerations.
First, the board should determine the prospective attorney’s experience level in the representation of community associations. Attorneys for common interest communities are similar to the general counsel in major corporations because of the wide range of issues that arise. Extensive experience in many of the possible legal issues facing community associations should be a prerequisite.
The statutes and laws regarding the regulation and management of community associations have become more complicated and specialized over the past 10-15 years as the number of common interest communities has more than tripled during that time period. In the past, many community associations hired a real estate attorney to represent their interests. In today’s practice, an HOA should hire a well-rounded law firm with direct experience in representing associations. Of course, this attorney could have a real estate practice, but it is crucial for the attorney to have experience representing associations, as well as experience in real estate, corporations, litigation, insurance, collection, foreclosure, bankruptcy and premises liability, as these are all subject areas that are routinely encountered when representing community associations.
The attorney’s professional affiliations and involvement in the community association industry add to the qualifications of the attorney. Ask whether the attorney is a member of the Community Association Institute; whether the attorney teaches in the subject area; whether the attorney participates in the legislative process for laws affecting community associations; and whether the attorney attends continuing education classes for a community association practice. All of these factors are important, because that attorney will be well versed in the current issues facing associations.
Second, the board should review the communication ability of the attorney or law firm. Communication covers many areas of the attorney-client relationship, including communication between the board and the attorney, and the attorney’s ability to communicate with the community members. It is imperative to discuss your communication expectations during the interview process. For an effective attorney-client relationship, you should expect prompt responses to telephone calls, work completed in a timely manner, availability for emergency matters, and status updates on pending work. You should discuss what types of communication will be used. Is the attorney available by telephone or email? How long does it take for the attorney to respond to phone calls or email? Does the attorney have a paralegal or another attorney available to take phone calls if the attorney is out of the office or with a client? Communication between the attorney and client is not always perfect, but you should feel comfortable with the attorney’s ability to provide you with prompt, regular responses to your questions.
Finally, you should consider the attorney’s billing practices and fees. Fees charged by attorneys should be reasonable. There are various billing structures used by attorneys: hourly billing; fixed fees; advanced fees; and contingent fees. Generally, HOA attorneys bill many things by the hour, meaning that the association is billed for the time the attorney, paralegal, and staff work on the matter. Some matters are handled on a fixed fee basis in which an established flat fee is charged for a particular service. Advanced fees, or “retainers” are used when an association pays an upfront fee to ensure that the attorney will be available when needed. Contingent fees are rarely used in association matters, except in the context of assessment collection cases. In this fee arrangement, the attorney is paid when the association recovers the amount it is due. You should discuss the attorney’s billing practices to make sure you understand them, and you accept them.
Choosing an attorney for your homeowners association should be a time-consuming process. Make sure that your attorney will meet your needs. In our next article on this subject, we will discuss how to establish a process to hire an attorney.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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