By Thomas J. Hindman, Esq., and Loura K. Sanchez, Esq.
Chapter 1: The Selection Process
The search for an association attorney should be conducted in much the same way as the search for any other association professional, such as the manager or accountant. The more thoughtful and comprehensive the association is in its efforts to find the right attorney, the better satisfied it will be with the results. To ensure success, the board should complete this basic search and selection process:
1. Identify and articulate the specific needs and requirements to be addressed by an association attorney.
2. Prepare a written list of the association's needs or prepare a more formal Request for Proposal (RFP) setting out the services required.
3. Develop a list of candidates using reliable referrals from appropriate sources and provide each candidate with a copy of the association's specific needs and requirements.
4. Review the various responses and select an appropriate number of attorneys for personal interviews.
5. Interview and check references of the attorneys under consideration.
6. Select the attorney best suited for the position based on the association's needs and requirements.
The board must decide at the early stages of the process who will be responsible for conducting the search. The board is charged with the responsibility of selecting and hiring legal counsel and often chooses to conduct the search as well. However, the board may decide to form a search committee that includes unit owners who are not board members, but keeping the search the responsibility of the board is the most common method to hiring association counsel. Whether a search committee is used or not, it is important to keep scheduling conflicts to a minimum by limiting the number of individuals involved in the process to no more than five people. All individuals should be willing to make the time commitment and be best qualified to conduct the search. At least one director, preferably the president, should be included. If a committee is used, its recommendation should be made to the board.
Identifying Legal Needs and Requirements
In order to fully address the association's legal needs, the board must assess exactly what those needs are at present and what they are likely to be in the future. The services offered by attorneys vary widely, as do the fee structures. Frequently, associations make the mistake of selecting legal counsel based solely on an immediate need, such as the collection of a delinquent assessment or enforcement of a particular covenant. In truth, however, an attorney is an integral part of an association's operation, and should be intimately familiar with all aspects of community association law and operations.
Another common practice among associations is to wait to hire legal counsel until an unusual situation develops when they absolutely must hire an attorney. For example, the association may encounter a particularly complex assessment lien foreclosure, bankruptcy, or receivership, prompting it to seek legal counsel. Communities that have recently taken over from a developer may experience construction problems. Older associations may wish to renovate existing common elements, or construct new amenities. An association may find the need for legal counsel when challenged by a unit owner (e.g. "my lot was never properly annexed", "you cannot enforce rules and regulations in that manner", "the architectural review committee should have approved my patio,"), or confronted by legal issues of daily operations such as the question of who maintains particular portions of the community and at whose direction and expense.
Even in times where there are no pressing matters, an association should maintain an ongoing relationship with an attorney who acts as the association's general counsel. An association's general counsel plays an integral and indispensable role in the successful operation of an association. General counsel should provide the board with both practical and legal advice formed on a comprehensive knowledge of association operations and law and should be geared towards preventing future legal problems. An association attorney should know how to identify potential future needs of an association. For example, the age of a community or the strength of its documents provide an attorney with information to protect the association from trouble down the road. A younger community may require assistance in dealing with a developer that has breached warranties, whereas an older community may need guidance in levying special assessments to repair aging buildings. Additionally, an association's governing documents may point out potential problems to the knowledgeable attorney. For example, governing documents that are unclear on election procedures may not provide answers in the case of a contested board election. A qualified community association attorney will recommend a remedy to any weakness found in an association's governing documents. A preventative approach advocated by competent general counsel has a number of benefits:
- Legal risks themselves can be reduced if they are identified ahead of time.
- Association transactions and contracts can be structured in a way that will ensure a strong legal position in the event of a dispute.
- Money can be saved on unnecessary legal battles or unsuccessful litigation if the attorney has a good working knowledge of the association.
[This sample comprises only part of chapter 1.]