Not every condominium or homeowners’ association is going to run afoul of the law—the happy truth is that litigation and legal trouble are relatively rare occurrences. However, even the most upstanding board in Florida must navigate a labyrinth of association law in the course of serving its ownership, and the odds are that its trusty group of volunteers will include few, if any, qualified legal professionals. 

So what to do in order to ensure that your association’s business remains on the up-and-up? Hiring one of the aforementioned legal eagles would be a good start, sure, but how best to ascertain which attorney or firm is the one to guide your association right and true? Turns out, choosing a legal pro isn't so different from choosing any other kind of service provider your HOA might need—even if the stakes are somewhat higher.

Counsel to Counsel

As the old saw goes, often it’s not what you know, but who. Usually, when it comes to day-to-day business, advice, and guidance, that person is the property manager. Property managers, more often than not, will have rubbed elbows with an attorney or two in their day, and will be able to provide the board with some recommendations as to which firm may best suit its budget and needs.

“From an attorney’s point of view, a property manager can act as a lightning rod for business,” says Avi S. Tryson, a partner with the law firm of Goede, Adamczyk, DeBoest & Cross, PLLC in Coral Gables. “If you work with them well on one property, they’ll become confident that you’ll be able to replicate that level of quality with another. It’s a quid pro quo, as, by making them look good, they make you look good. There’s a built-in relationship there.”

Outside of word-of-mouth, Tryson recommends that associations look for relevant op-eds in newspapers and trade publications, as attorneys often take to print to raise awareness of or demystify current issues affecting specific communities. These articles can be a good way to ascertain how well an attorney knows his or her stuff before even meeting for a consultation. 

There are also occasional seminars put on by law firms and trade organizations—very often free of charge—specifically for board members. “There’s a statutory requirement that, once someone becomes a board member, they must take a certification course within 90 days, or sign a waiver asserting that they’ve read all of the governing documents of the association and know specifically what their duties are,” explains Tryson. “Attorneys offer these courses as way of introduction to a new crop of board members, and board members can in turn determine how the attorneys work and operate, gauge their personalities, form relationships, and take away experiences that they may reflect back upon, if or when, they need to choose new counsel.”

The Checklist

So assuming that a board has identified a field of prospective legal counsels, what specifically should they be looking out for in their search for their ideal legal pro? What are some particular traits that can put one candidate over the top? 

“A board needs to know that it can trust its law firm, both in terms of competency and ethics,” says Jennifer Loheac, a New Jersey-based shareholder with Becker & Poliakoff, a commercial law firm with offices throughout Florida. “Good attorneys always strive for long-term relationships over quick paydays. And community association law differs from other legal practices. Our relationship doesn’t end when a personal injury payment is made, or a couple finally arranges for custody of a child. A good community association lawyer will recognize that a relationship with an association is the single most important element to a successful experience for both parties. We counsel people where they live, and this often involves understanding a cross-section of law: property, contract, insurance, some employment, environmental, constitutional, and so on.”  

“We have to be adept at balancing legal answers with practical solutions for everyday living,” Loheac continues. “And our work is not solely reactive. A community needs more from an attorney than for them to hunt down delinquencies or to act as an enforcer for rule violations. Owners are proud of their buildings and neighborhoods, and it’s also their investment. Their attorney should care about them, their community and its problems, as well as its history and culture. They should be sensitive to the community hit hardest by a storm, or the community with a vast aging population and special needs. There are communities that are struggling financially; that have uncertain futures due to increasing vacancies. Boards should be able to rely on their attorneys to help accomplish positive goals, from siding projects to outsourcing employees to renovating a clubhouse. Community association attorneys can help communities secure loans, modernize governing documents and create emergency preparedness plans.”

And Joseph Scharnak, a Chicago-based partner with the law firm of Arnstein & Lehr LLP, which has several offices in Florida, notes that, even among condominium or HOA-focused professionals, not all attorneys are created equal. “An association will definitely need to rely on both transactional attorneys and litigators,” he says. 

“Most attorneys don’t do both—and if they do, they don’t do them well. You’re going to want a transactional attorney to crank out documents—amendments to the declaration, rules and regulations, reviewing and negotiating contracts—which is the day-to-day stuff with which every association deals. Then you’re going to need a strong litigator; someone who is going to be fighting for your interests in the courtroom when conflicts happen—and they will. There are going to be slip-and-fall cases, there are going to be employment law cases, there are going to be discrimination cases; these things happen fairly frequently, and you’ll need a strong litigator to step up. And I can say, as a transactional attorney, I have neither skill set, background nor desire to take that on!”

Warning Signs

With every attribute assigned to a competent, conscientious legal representative comes its inverse. Just as there are shoddy carpenters and plumbers who cause more leaks than they fix, unqualified attorneys are out there—and they can cause a great deal of trouble, and expense. 

The first step in side-stepping such situations is to prevent a so-so pro from even getting in the door. “Always ask who an attorney represents; ask for references,” says Tryson. “It sounds basic, but I often go entire interviews without anyone inquiring.”

“And any attorney that a board is considering hiring should be prepared for their inevitable meeting,” Tryson adds. That means having familiarized themselves with the complete set of association documents and having them on-hand for reference. “When we meet with a potential client, we assume we’re there for a reason,” says Tryson. “Either they’re unhappy with their current lawyer, or they’re a smaller building and this is their first time seeking counsel. But they usually have issues, whether they’re leasing restrictions or pet policies or parking… when you’ve been doing this long enough, you can ascertain as to what the hot topics are, and read through the documents to point out any potential issues. So if a firm shows up with only sheets about themselves in hand, and haven’t done due diligence on the property itself, that’s a red flag.”

Echoing Scharnak, Loheac warns against any attorney that advertises themselves as a one-stop shop, claiming to do general counsel, collections and litigation. Also, attorneys who aggressively look to litigate on behalf of an association in lieu of first attempting mediation or settlement can be problematic—and expensive. Finally, those unwilling to play with others, whether that be management, accountants, engineers, or the board itself should be avoided.

Getting Paid

The one thing that any attorney a board hires—be they F. Lee Bailey or a less experienced junior associate—will possess is that expectation that they will be paid for services rendered. And payment should be forthcoming in a timely fashion. However, there are different ways by which an attorney may bill an association, and the chosen method may be an indicator as to whether the attorney is a good fit.

“We typically sign an engagement agreement with an association to represent it for general, litigation and collection matters,” explains Tryson. “We don’t require a retainer, unless there’s soon to be a substantial litigation down the line, i.e. a several-year, multiple hundreds-of-thousands-of-dollars situation. Of course in that case, we’d discuss such things beforehand.”

However, he continues, “For the most part, it’s pay-as-you-go, a la carte. When it comes to collection matters, in regard to people being delinquent in paying assessments, we do collect a retainer if the association wants us to file for foreclosure, but only because of the filing fee, title search, service cost, the actual upfront that we’ll incur. These cases most likely go on for 8-12 months, and there is no monthly billing process with those types of files. So we want to make sure that we’re not laying out all of these costs for months—if not more than a year—waiting for that case to reach its conclusion.”

For his part, Scharnak says that his firm’s model is fairly cut-and-dry: 

“With all of our clients, the first thing we do is run a conflict check to make sure that we’ve not represented anyone [in the association] with adverse interests that may pose a problem. Then we open a file, and send them an engagement letter establishing our hourly rates, which differ between paralegals, associates, and junior versus senior partners. We explain that we bill in 1/10 hour increments, on a monthly basis; that invoices are due within 30 days. We have flat fees for some types of projects. We take contingency fees for property tax work. And the letter really just spells out the scope of what we’ll be doing. The client has to review that, sign it, and return it before we go any further. From there our relationship is established. So we put them on the clock in 1/10th hour increments; we’re not going to bill them $1,000 for a month, whether they called us zero times or 100 times.” 

The upshot of hiring legal counsel for your association—whether you're switching firms, or hiring an attorney for the very first time – is that the process should be approached with the same level of seriousness and scrutiny with which you'd approach any high-ticket item or service for your community. Do your homework, check references, ask questions (even tough ones), and if someone makes claims that seem too good to be true, they probably are. Your legal pro(s) are your community's guardians—and guard dogs, if need be—and you owe it to your board and residents to pick the best people for the job.

Mike Odenthal is a reporter and staff writer for The Florida Cooperator.