Does the HOA attorney represent you too?
By OurHOA · General information
No. The association is the client, not owners or directors. What that means for privilege, what not to tell the HOA's lawyer, and when to get your own.
The client is the association, not its members
When a homeowners association hires counsel, the client is the corporate entity. Under the organization-as-client rule that nearly every state adopts from Model Rule of Professional Conduct 1.13, a lawyer retained by an organization represents the organization acting through its authorized constituents, not those constituents personally. For an association that means the board, acting as a board, instructs counsel, and counsel's duties of loyalty and confidentiality run to the association as a whole. It does not mean counsel represents you because your dues paid the invoice. Owners often assume the opposite, reasonably enough, since the association exists to serve its members and the legal bill is a common expense. The distinction becomes concrete the moment the association's interests and yours diverge, which is precisely when owners tend to call. If you are the one being fined, billed, sued, or told to remove a structure, the lawyer on the other end of the phone is not neutral and is not yours.
What that means for what you say
Nothing you tell the association's attorney is privileged as to you, and there is no obligation to keep it confidential from the board. A candid explanation of why you fell behind on assessments, when you actually built the addition, or what you told your contractor can end up in a board packet or a pleading. Professional conduct rules do require a lawyer dealing with an unrepresented person to avoid implying disinterest, to correct a misunderstanding about the lawyer's role, and to refrain from giving legal advice other than advising the person to get counsel. Those protections are real but thin. Treat a call or letter from association counsel the way you would treat opposing counsel in any other matter: answer factual questions you are comfortable answering in writing, do not volunteer, and ask for anything significant in writing so there is a record. If the matter involves money, federal law may apply as well. In Heintz v. Jenkins the Supreme Court held that the Fair Debt Collection Practices Act reaches lawyers who regularly collect consumer debts through litigation, which opens the validation and dispute path described in our guide on HOA collections and attorney fees.
Individual directors are not the client either
Board members are frequently surprised by this. A director who calls the association's lawyer for personal advice, or who assumes the lawyer will defend them individually, has misread the relationship. Counsel's client is the association, and Rule 1.13(f) requires the lawyer to explain the identity of the client when it becomes apparent that the organization's interests are adverse to those of the constituent the lawyer is dealing with. Rule 1.13(b) goes further: if a director is acting in a way that is a violation of law likely to cause substantial injury to the association, the lawyer generally must refer the matter up the ladder, ordinarily to the full board. In practice this surfaces when a director is accused of self-dealing, when one faction of a board wants its own counsel, or when an owner sues both the association and a director personally. At that point the director usually needs separate representation, which is what directors and officers coverage and the indemnification provisions in the bylaws exist for. A director who does not understand which of those applies should ask before the next meeting, not after a complaint is served.
Who holds the privilege, and what owners can inspect
The attorney-client privilege belongs to the association, and the board acting as a board decides whether to waive it. One director cannot waive it alone, and forwarding a privileged opinion letter to the membership or posting it in a community forum can waive it for everyone, which is why counsel asks boards not to circulate legal advice. This is also the usual reason an owner's records request comes back with documents missing. Florida's records statutes expressly exclude material protected by the lawyer-client privilege and the work-product privilege from what members may inspect, at Fla. Stat. 720.303(5)(c) for homeowners associations and the parallel provision at 718.111(12)(c) for condominiums. California's inspection statute, Civil Code 5215, likewise allows an association to withhold or redact defined categories of records. A board may also meet in closed session with counsel, and California Civil Code 4935 permits executive session to consider litigation and certain other matters. None of that lets a board route ordinary financial records through a lawyer to make them disappear. If a response withholds more than the privileged material, ask for a written list of what was withheld and the basis for each item.
When the association's lawyer and the members disagree
Because members pay for counsel without directing counsel, the fee is a recurring source of friction, particularly where an association is litigating against an owner or a developer. Two things are worth understanding. First, a legal opinion is advice, not a decision. The board is free to reject it, and a board that hides behind counsel rather than explaining its own choice is dodging its own responsibility. Second, you can usually see what the legal work cost even when you cannot see the advice, because invoices are financial records while the underlying communications are not. Asking for the litigation line in the budget, the year-to-date legal expenditure, and the board resolution authorizing the engagement is a more productive request than demanding the opinion letter itself. If you believe counsel has an improper relationship with a director or a manager, that is a conflict-of-interest question for the board rather than a privilege question, and the right move is a written request that the interested director disclose the relationship and recuse from the vote on the engagement.
When to get your own lawyer
Get your own counsel before you respond, not after, in a few specific situations: a recorded lien or a foreclosure notice, a lawsuit naming you, a demand letter that threatens to accelerate a balance or add fees, an architectural dispute over a structure you have already built, any matter where a fair housing accommodation has been requested and denied, and any situation in which you are a director whose personal conduct is under review. For smaller disputes, an hour of consultation to read the declaration and tell you whether the association's position is defensible is often the entire legal spend you need, and many states require or encourage alternative dispute resolution before a covenant lawsuit anyway. Our guide on whether you can sue your HOA lays out the grounds, the prerequisites, and the cost reality. Whatever you decide, keep a clean written record of every exchange with association counsel, and remember that a sympathetic tone on a first phone call does not change who the client is. Rules of professional conduct and records statutes vary by state, so confirm your own state's versions before relying on any of this.
Sources
These guides are general education for HOA boards and residents, not legal, tax, or financial advice. Rules vary by state and by your community's governing documents - check with a professional for your situation.