Proposed Legislation Set to Make a Mess
Assembly Bill 1720 is making waves. In its original draft, this bill sought
to add the following section (c) to Civil Code section 4925:
The board shall permit an attorney who represents a member to attend any
board meeting that the member is permitted to attend, regardless of whether
the member attends. Where possible, the member shall give the board at
least 48 hours advance written notice that his or her attorney will attend
the board meeting.
What would this have meant to Associations? The issues this bill in the above draft would have created are numerous.
First, Associations would have needed to have their own attorney present.
Board members would have been recommended by their own counsel to refrain
from speaking to member’s counsel without the presence of its own
counsel. The Association’s attorney will protect the board from
stating anything that might otherwise hurt it in litigation or mediation.
Thus, the presence of the Association’s attorney at every meeting
would have been essential, which would have likely increased costs for
the Association and, therefore, the members. And, not all Associations
have attorneys. This would have placed such Associations in a precarious
position and ultimately forced them to hire counsel, which would have
also increased fees paid by the association and, thus, by the members.
This Bill also, as it was originally drafted, forgets that attorneys are
not permitted by ethical rules of conduct to speak with a represented
party. If the member’s attorney, therefore, were to speak to the
Board without the permission of the Association’s attorney, he or
she may be violating the profession’s ethical rules of conduct for
The attorney hired by the member is representing the member’s interests
and not the interests of the Association or development. What this would
have done to a meeting is unknown, but one can speculate and image that
a boisterous attorney advocating for his or her client is not going to
attend a board meeting to only be given a few moments to speak and then
simply be passed over as the next member is called to address the board.
The bill, therefore, not surprisingly, faced a lot of backlash and has
since been revised.
The current draft of the bill alternatively provides:
The board shall permit
an attorney who
a person who represents a member to attend any board meeting that the member is permitted
to attend, regardless of whether the member attends. Where possible, the
The member shall give the board at least 48 hours advance written notice that his or her attorney
a person representing the member will attend the board meeting.
As shown, the word “attorney” was replaced with the word “person.”
Does this really change anything? No, attorneys are people too. Therefore,
members can still have their attorney present at Board meetings, and all
the above discussed issues are still relevant. And, now not only can one’s
attorney be present at the Board meeting, anyone who represents the member can be.
The Civil Code already provides an outlet for members to discuss disputes
with the Board with the member’s attorney or any other reprehensive
present. For example, Civil Code § 5910 provides, “The member
and association [at an IDR meeting] may be assisted by an attorney or
another person in explaining their positions at their own cost.”
If a member has a problem with the board or association, open meetings
are not the correct settings to be vocalizing that dispute.
Getting a member’s representative (i.e. attorney) involved at board
meetings is not a good idea and is likely to create more turmoil and increase
costs for associations and, therefore, the members. This is one bill that
should be voted against.