HOA's legal counsel?

Does the law firm of McCabe, Trotter & Beverly, P.C. (MTB) represent The Summit Community Association, Inc. or its Board of Directors?

For example, if a conflict-of-interest arises, does Attorney Stephanie Kellahan side with the 2,480 homeowners and the Governing Documents of the HOA, or is she the lawyer for one or more of the Directors and Officers?

This question is not hypothetical.

Over the past five years one or more of the officers and directors has failed to comply with the significant sections of By-Laws of the HOA. When I have written to the Board, I have urged them to seek the written legal advice of their attorney.

Why written legal advice? There is less chance of misinterpretation, misunderstanding, and error by an Officer or Director. There is the record to be included in the documents of the HOA. It is there for ALL the directors to read. None has to rely on a verbal recitation of a conversation with the lawyer.

Because nothing has changed in operations, I suspect that they have not conferred with the HOA's attorney. If they had, I'm pretty sure the attorney would have told them, "You can't do that" or "You must do this".

There should be an Engagement Letter, signed by the President and the Secretary of the HOA at that time. That sets out the terms of the deal between the HOA and MTB. There should be a Resolution on file in the HOA's office that authorized the President to engage the services of MTB. The engagement letter sets down the scope of services and the fees for services to be rendered. The Minutes of the Board Meeting when the directors approved that engagement of legal services should include this and the vote on the engagement.

Was MTB ever formally engaged? 

What if the Association sued the Directors for failing to comply with the By-Laws? Would MTB represent the Association or the Directors? Or would MTB have to recuse itself, and two new law firms would tangle?

Just imagine the legal fees!

Of course, that could be avoided if the Directors and Officers would just comply with the By-Laws. 

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