QUESTION: Our association has no legal representation and the board relies solely on our management company for legal advice. Is that legal?
ANSWER: Managers are often quite knowledgeable when it comes to the law, which makes them invaluable to associations. Their experience and knowledge gives them the ability to spot problems and sound warnings when boards stray into areas of risk. But, all managers can do is raise red flags. They cannot give legal advice.
Practice of Law Defined. California has an expansive standard for defining the practice of law. It does so to protect citizens from the damage and wrongs committed by unlicensed practitioners. California broadly defines the “practice of law” as dispensing legal advice or service, even if the advice or service does not relate to any matter pending before a court. (Mickel v. Murphy (1957) 147 Cal.App.2d 718, 721.) California’s Office of the Attorney General deems the unlicensed practice of law as a form of fraud and those engaged in it can be criminally prosecuted. Business and Professions Code §6126(a) was amended in 2003 to stiffen the penalties for those who dispense legal advice without a license:
Any person . . . practicing law who is not an active member of the State Bar . . . is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment.
No Insurance Protection. Because the unlicensed practice of law is a crime, insurance will not protect a manager from prosecution for such activity. As provided for in Civil Code §2773, “An agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it to be unlawful.” For example, if you intentionally set your house on fire, don’t expect your insurance company to pay for it. The same applies to dispensing legal advice. If a manager dispenses legal advice and the association is damaged as a result–an insurance company owes no coverage or defense for acts or damage arising out of any illegal act committed by or at the direction of an insured. (20th Century Ins. Co. v. Stewart (1998) 63 Cal.App.4th 1333.)
No Indemnity Protection. The statute cited above also affects management agreements. An indemnity provision in a management contract will not protect a manager from fines and jail time nor will it protect him from lawsuits by third parties or the association when it comes to the unlicensed practice of law.
Unlicensed Practice of Law. Many managers engage in the practice of law without realizing it. Following are examples of what a court would likely deem the unlicensed practice of law:
1. Advising boards about rights, duties and liabilities. That includes but is not limited to:
- Proper handling of recall elections,
- Voting rights and requirements in election disputes,
- Borrowing from reserves,
- Emergency assessments,
- Proper collection procedures,
- Interpreting the Davis-Stirling Act,
- ADA compliance issues,
- Interpretation of contract provisions,
- Disputed maintenance and repair issues,
- Disputed water damage and mold issues, and
- Settlement issues.
2. Preparing documents that alter rights, duties and liabilities. Managers and management companies can prepare documents that are incidental to the regular course of their business. Anything beyond that must be prepared by legal counsel. That includes but is not limited to:
- Amendments to CC&Rs, Bylaws, and Articles of Incorporation,
- Contracts and contract provisions,
- Collection policies,
- Election rules,
- Rules enforcement policies,
- Settlement agreements, and
- Hold harmless and indemnity agreements.
Violation of the BJR. The hourly rates for HOA lawyers typically range from $175 to $350 whereas legal advice from a manager is free. In the current economic climate, it’s understandable that boards would try to save money by seeking free legal counsel from their managers. However, doing so exposes directors to significant risk. By statute, directors are protected from personal liability for errors in judgment if they follow the Business Judgment Rule, which requires that decisions by directors be:
- In good faith,
- In a manner which the director believes to be in the best interests of the corporation, and
- With such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. Corp. Code §7231(c).
Directors will have difficulty convincing a jury that seeking legal advice from a manager was prudent.
RECOMMENDATION: Managers often have enough training to recognize when boards wander into areas of legal peril. When that happens, they should alert directors to the danger and advise them to seek legal counsel. Boards should not put themselves and their managers at risk by pressing their managers for legal advice. It’s not fair to the manager and potentially costly to the association and its directors. When asked for legal advice, a manager should always recommend that the board seek legal counsel. Doing so protects both the manager and the board.
Father’s Day #1. Adrian, I just wanted you to know that I loved the comment you made at the end of the newsletter about spending Father’s Day in AZ with your Dad, a former Marine. My mother and father were Marine Corps officers, and I know how important that culture was to me. Semper Fi to you and your Dad! I wish mine was still around, so maybe you could share my well wishes with yours and thank him for his service? All the best, Cat C.
Father’s Day #2. Judging by his age, your Dad probably fought in the Korean war. Glad to hear that he served our country well! Yesterday I did a loan signing for a young man and his family. He served in Iran, got a purple heart. He was hit by a road bomb that did some damage to his spine. I thanked him for serving our country. When I returned to my car, all I could do was cry. I’ll never forget him. -Ellen M.
RESPONSE: Yes, he served during the Korean War. His picture is on the right. He’s a great guy and I love him dearly. Thank you for your kindness toward our veterans. Those in military service are the best and brightest of our country and the ones who sacrifice themselves to preserve our freedoms. They deserve our gratitude.
Adrian J. Adams, Esq.
ADAMS KESSLER PLC
“Legal solutions through knowledge, insight and experience.” When your association needs legal assistance, contact us at (800) 464-2817 or email@example.com.