There are many circumstances under which litigation can arise between members of a community association and the community association or its board of directors. One tactic employed by members who are litigating with or otherwise adverse to the interests of the community association is to disrupt the open meetings of the association by having the member’s attorney attend the open board meetings as a “designee,” “proxy,” or “representative.” This article addresses how a board of directors responds to the attendance of an attorney representing an adverse party at its board meetings.
The members of the community association elect a board of directors, and the board of directors is typically charged with responsibility for the operations of the community association. The right to attend, speak at, or vote at an open meeting of the board of directors is traditionally granted directly to the members of the community association. The board of directors has the right to conduct the meetings of the board for the efficient operations of the condominium’s business. Furthermore, the board of directors has the right to adopt and amend reasonable rules and regulations, to transact its business, and to do other acts appropriate to promote and attain the purposes set forth in the governing legislation or the governance documents of the community association.
The obligations of the community association to allow its members to attend, speak at, and vote at open meetings are obligations that run to the members and not to third parties. While the community association cannot deprive its members of those rights, it has no obligation to protect the ability of a third party to exercise those rights on behalf of members. The board can prohibit an attorney for a unit owner from attending its meetings. Prohibiting an attorney from attending a meeting on behalf of a member of the community association does not deprive the member of any fundamental right or benefit of membership.
In a recent case, SB Liberty, LLC v. Isla Verde Association, Inc., 217 Cal. App. 4th 272 (2013), the Court of Appeals of California, 4th Appellate District, Division 1, addressed a circumstance where a member of the community association attempted to have its lawyer attend open meetings of the association. The attorney attempted to attend two meetings. The first one was cancelled and readjourned in a member’s residence. At the second meeting, the board met in executive session and voted to exclude the attorney’s attendance at the meeting. The lawyer, upon being so advised, left the meeting but immediately commenced suit on behalf of the member against the community association seeking to compel the community association to allow his attendance at future meetings.
The trial court and appellate court both upheld the right of the board of directors to vote to exclude the attorney from the meeting. The courts found that excluding the attorney did not deprive the member of the association of any rights that the member was granted under the governance documents or enabling legislation. Further, the courts held that the board had the authority to determine how to conduct its meetings and, thus, the power to prevent a nonmember from attending and participating in those meetings on behalf of a member as its representative. Excluding the attorney from the meeting in no way impacted upon the member’s rights.
The lessons from the SB Liberty case are readily applied in the Mid-Atlantic jurisdictions. It is unquestioned that the board of directors has the right to conduct its meetings as it deems in the best interests of the association and to promote the efficient operation of the association. Attendance by lawyers representing adverse parties can be prohibited by the board and the board should not be intimidated by attorneys for adverse parties into allowing the attorney to attend board meetings. Furthermore, such attendance would obviously have a chilling effect on discussions both by the board with the members of the association and by the other members with the board. This would obviously impact upon the efficient operations of the association. The association is entitled to enact rules and regulations to promote the efficient operations of the association to prohibit such interference.
Furthermore, quite aside from the board’s powers under Maryland law, the board is also entitled to some protection under the rules that govern lawyers’ behavior. One of the Rules of Professional Conduct applicable to lawyers prohibits communications by a lawyer directly with a person who the lawyer knows is represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so. When the person represented is an organization, the prohibition extends to the officers, directors, and managing agents and the agents or employees who supervise, direct, or regularly communicate with the organization’s lawyers. A lawyer attempting to communicate with an adverse party that is an organization must first make inquiry to ensure that the agent or employee is not an individual with whom communication is prohibited under the Rules of Professional Conduct. Clearly, communications with the board of directors or management of the community association fall within the protection of this rule. Thus, attendance by an attorney representing an adverse member of the association is prohibited at a board meeting because such attendance is an effort to communicate with the association’s board of directors or management, unless the lawyer representing the association has consented or there is other authorization by law or court order. Violations of this rule in the form of attendance by adverse attorneys can be referred to the appropriate disciplinary bodies of the applicable state bar.