AB 1720 was recently introduced by Orange County Assemblyman Don Wagner. If passed, the bill would allow any community association member’s attorney to attend all association board meetings which the member may attend. This would be allowed even when the member does not attend the meeting. In addition, the bill would allow the member’s attorney to address the board on any item, even those items not on the agenda. While some may think this is a “common sense approach” to allowing members to protect their rights, it ignores the reality of how associations operate, will lead to increased legal expenses for all associations and may fly in the face of the State Bar’s ethics rules for attorneys.
Faced with a member’s attorney in the audience or asking questions, boards may limit discussion on items for fear of how the attorney might use the discussion at some point in the future. This is especially true if the item is controversial or there is a split opinion on how the board should proceed. In addition, if the member’s attorney starts to ask questions, the volunteer homeowner board may not know how to answer such questions, or even if they should answer without seeking the advice of the association’s own counsel. Not all associations currently have legal counsel, and even those that do rarely have their attorney attend the entire meeting. Should the bill pass, associations will have to consider increasing their budgets to include increased legal fees should the need arise for the association to retain counsel and have them attend meetings.
Ironically, despite being introduced by an attorney (Assemblyman Wagner is an attorney himself), and sponsored by California Association of County Bar Associations, the bill would allow a member’s attorney to address a board without the association’s attorney being present. This could violate the California State Bar rules which forbids one party’s attorney from addressing another party without permission from that party’s attorney (See: “Rules of Professional Conduct: Rule 2-100 Communication with a Represented Party).
If a member wants to address the Board, with or without an attorney, there are other opportunities under current law for such a meeting, including an informal private meeting, internal dispute resolution, and alternate dispute resolution. Therefore, the bill is unnecessary.
In sum, AB 1720 is an unwarranted disruption to proper and orderly board discussions, causes unnecessary expenditures to our associations, and will intimidate volunteer board members. We need you to act on this proposed bill. If you are a constituent of a member of the Assembly Housing or Judiciary Committees, please go to our Call to Action and help stop this bill.
Robert M. DeNichilo, Nordberg|DeNichilo, LLP
Mr. DeNichilo is partner in the law firm Nordberg|DeNichilo, LLP, and specializes in representing homeowners associations throughout Southern California. He is an active member of CAI, and serves on the Legislative Support Committee of the Greater Inland Empire Chapter, acts as co-chair of the Orange County Chapter’s Legislative Support Committee and is the chapter’s liaison to CLAC. He is a frequent speaker at industry and management company educational events. Mr. DeNichilo publishes a blog on association related topics at HOABrief.com. For more information, please visit NDHOALaw.com