In the practice of community association law, attorneys face special ethical considerations with respect to representation of community association clients and the attorney’s relationship with community association management companies.
Certain attorneys may receive a large portion of their business through referrals from one or two management companies, and if a dispute arises between one of their community association clients and the manager which cannot be settled without litigation, the attorney may refuse to sue the manager and advise the board of directors that they should find another attorney.
We believe these attorneys who practice in Michigan should take another look at the Michigan Rules of Professional Conduct for lawyers, which includes the following:
“…As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system… A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
“…Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. ”
“…The lawyer’s own interests should not be permitted to have adverse effect on representation of a client… A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest. “
So, the question is, can an attorney zealously represent an association client’s best interests with respect to the management company if the attorney has a policy of never suing management on behalf of the attorney’s clients? Keep in mind that the management company is likely aware of that policy as well. We believe that following this kind of policy is unethical, placing the attorney’s interests ahead of the client’s interests. It is essential for boards of directors who are evaluating legal services to ask the right questions and discover an attorney’s position on this question. For example, how can the attorney objectively evaluate the management contract for the association under these circumstances?
Notably, attorneys with policies of never suing management actually claim an ethical conflict of interest, which is really a tacit admission of the larger problem (or a baseless excuse for not getting involved).
Although some attorneys who have taken our position have been accused of being “anti-management”, or singled out as “the ones who sue managers”, we at The Meisner Law Group have always encouraged community associations to pursue professional management services. We work with many experienced, effective managers who are the best in the business. Also, we don’t hesitate to stick up for managers when they are clearly not responsible for a situation.
Our archives offer more reading about navigating the relationship between your attorney and management.