Your Legal Counsel What all boards should know

When your board hires a professional, you’re looking for someone they can trust to do good work on behalf of your building. This goal is doubly important when it comes to hiring and interacting with a lawyer for your co-op or condo building. The long-term relationship between a board and legal counsel provides continuity and guidance as the years pass and boards change. In order for that relationship to work, however, both the board and the attorney must be willing to work together to ensure that things run smoothly and in the building’s best interest. Relying on the good judgment of your legal counsel and being aware of his or her responsibilities to you and your building will benefit everyone involved and make the day-to-day operations of your building as smooth and trouble-free as possible.

Selecting Legal Counsel: What to Look For

Co-op and condo boards often don’t look into hiring an attorney until they have a specific problem. While this approach is common, it’s not the best plan of action, says Ken Jacobs, attorney and partner at Smith Buss & Jacobs of Manhattan and Yonkers, New York. According to Jacobs, you should have an attorney on hand to advise you on all pertinent legal matters, no matter how small. But whether you’re looking for a general counsel for something that may not be an immediate issue, or you have an urgent board matter that requires a swift response, there are several qualifications a prospective lawyer should possess. Jacobs advises boards to:

• Seek out lawyers and firms with experience working with co-ops and condos. Make sure they’re well versed in that area of the law.

• Use someone who takes a problem-solving approach, rather than going right into litigation. Hire someone willing to cover the range–someone who takes a practical approach that is backed up by litigation, if necessary. The steps your board takes to remedy a legal issue should be dictated by what’s best for the building–not by what your lawyer’s personal preferences may be.

• Find someone who will be honest with you. It sounds simple enough, but it’s important to find a professional who is not only experienced with co-op and condo law, but who is also able to readily admit when he or she is not the best person to handle a specific conflict. Says Jacobs, "What you’re looking for is integrity: You should be able to rely on your lawyer, but they must be straightforward and know their own limitations."

The Third Degree

When selecting legal counsel, Jacobs suggests asking your prospective barrister the following:

• How many boards do you currently represent?

• May we see one of your bills? It’s helpful to understand the attorney’s billing arrangement beforehand and to know how detailed the firm’s bills are. Remember: "While saving money is important, this isn’t necessarily the time to be pennywise," says Tom Smith, partner at Smith Buss & Jacobs. "Spending the money upfront for someone with more experience in co-op and condo law can actually save you money in the long-run." Someone with less experience is likely to take more time with a case, resulting in higher costs to you.

• How quickly do you respond to clients’ needs? "Even if an attorney’s response to your question or request is, ‘I don’t know at the moment,’ or ‘I don’t have time to look into that today,’ you’re getting an acknowledgement of your question," says Jacobs. He adds that the number one complaint among boards regarding their attorney is the attorney’s failure to respond to phone calls.

• May we see your references? Talking with other co-op or condo boards or a managing agent may be a less intimidating, more objective way of getting answers to your questions. Asking your prospective attorney how quickly they respond to calls or questions will most likely yield a biased response. Asking a board who has worked with the attorney or firm may give you a more accurate picture of whether the individual or firm is a good match for your needs.

• Who will we be working with? If you don’t have one specific lawyer in a firm of several, make sure you ask whom your board should contact if there’s a problem. Who will serve as the firm’s liaison to your board? Which attorney will handle which issues, and so on. It’s also a good idea to request to meet any additional partners who will be working with your attorney.

Responsibilities of Legal Counsel

Once you’ve found an attorney, it’s important to know what your board can reasonably expect of him or her. "A good legal counsel will know and be aware of your co-op or condo’s bylaws, proprietary lease and house rules," says Errol Brett, of Manhattan law firm Belkin Burden Wenig & Goldman, LLP. Brett, who serves as counsel to about a dozen of the 80 or 90 boards his firm represents, considers himself part of a board’s "cabinet resource." He keeps his clients informed of new laws, City and State policies, and issues affecting the co-op/condo community by generating a monthly newsletter, maintaining a Web site (at www.coopcondo.com) and sending his clients memos covering immediate information, breaking news, and updates between publication of the newsletters.

Your legal counsel should, of course, be aware of the issues pertaining to each individual co-op or condo his or her firm represents. To stay current in the issues facing your board, your attorney should try to attend as many board meetings as possible. In addition, your lawyer should obviously have extensive knowledge and experience dealing with real estate law, corporate practice, contracts and litigation. Your attorney should be available to assist in issues of financing, leasing, defaults, tenant disputes, and drafting documents, and should make him or herself available to answer general questions as they arise–returning phone calls and answering inquiries in a timely fashion should be any good attorney’s top priority.

Clearly, the lynchpin of your board’s good relationship with its attorney is the certainty that your counsel is acting in the best interest of the board and tenants. This includes, as mentioned earlier, knowing when–and having the ability–to suggest bringing in special legal counsel to cover any gaps in your usual counsel’s knowledge or experience. "For instance," says Brett, "if you’re dealing with a zoning issue, that’s an area the general counsel may not specialize in." A trustworthy attorney will also be able to investigate the situation and present you with several options–and not just tell you what you want to hear.

Generally, boards keep their attorneys on retainer. According to Robert Fonti, president of Vincent James Management, a consulting and mediation services company in Manhattan and Huntington, Long Island, "This helps boards remain on a budget, and offers the advantage of being an ongoing client." However, says Fonti, "contact with the attorney depends on how the board is structured. Usually, the executive part of the board deals with the attorney most. Other times, a legal committee is set up and reports back to the board."

If a Problem Arises

If you think your lawyer isn’t holding up his or her end of the bargain with your building, don’t rush to judgment, but do acknowledge the problem directly and discuss the issue with your lawyer and fellow board members–the problem could be nothing more than miscommunication between your board and its counsel.

As with any long-term relationship, occasionally personality conflicts may arise. Perhaps you’re more comfortable with a certain partner than with another associate, or your attorney is having trouble working with a particularly stubborn board member. According to Jacobs, swapping cases because of differences in personality is not uncommon among partners in a given firm. Partners or associates might trade the co-ops or condos they are working with if the board members have changed since hiring the firm and the dominant personality has shifted in an unproductive way. In this case, legal counsel should be willing to change their approach to fit the board’s current needs.

If you or one of your fellow board members is unhappy with your building’s legal counsel, or wish to address some other problem you’ve been having, the best route to resolution lies with communicating directly to your lawyer. Most of the time, conflicts can be resolved simply and efficiently with one or two sit-down sessions to discuss the problem and work out solutions. For stickier issues where tempers are likely to flare up, or the specters of old, unresolved grievances still linger, it might be to your benefit to inquire about professional mediating services, or to seek advice from any co-op/condo community groups your building might belong to. Often, just involving an impartial third party is enough to clear the air and foster a more positive atmosphere of cooperation.

In any case, if a problem exists, your first step should be to voice your concern to your lawyer directly and attempt to work on the problem together. Brett advises the boards he works with to put their problems in writing, and in turn, he responds in writing. "You should get as much as possible in writing in order to protect the record," he advises.

Hallmarks of a Winner

To ensure that your counsel is above-board and working to your best advantage, Smith advises boards to look for an attorney with the following characteristics and business practices:

• A lawyer who doesn’t necessarily say, "Yes," or "You’re right," every time, but instead offers constructive criticism to a problem you’re having. Someone who is always quick to agree with you may inadvertently lead your board to take an ill-advised course of action that could result in a huge legal bill. "There are very few legal issues that are black and white," says Smith.

• A lawyer who encourages the board to be involved in their own legal concerns. "A good lawyer will engage the board," says Smith. "In turn, it is the board’s responsibility to ask questions and stay involved if they feel they are not being kept informed. It’s important not to take a passive approach to legal matters."

• A lawyer who keeps lines of communication open. While it’s not uncommon for legal counsel to be in contact with only a few members (such as the board president or a legal committee), a building’s lawyer should make themselves available (within reason, of course) to board members with questions or concerns.

In Summation

An informed, involved board is key in keeping the attorney-board relationship running smoothly. Your board needs to make sure it’s serving its own tenants by seeking the best representation your building can afford. A board should take the time to investigate its options when it comes to choosing an attorney, and take an active role in staying informed of all legal matters impacting the life and operation of the building. A long-standing relationship between your board and its legal counsel confers the advantage of having a lawyer who is not only familiar with the institutional history of your building, but who feels a personal connection to your board and residents. The attorney-board relationship is based in business and the letter of the law, but over time and with equal efforts from all involved, it can become a mutually beneficial partnership.

Ms. Mannino is a freelance writer living in Montclair, New Jersey.

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2 Comments

  • Our recently hired co-op board attorney is president of another, local, co-op board.. Both co-ops have the same managing agent and have had the same property manager. Uncomfortable.
  • I agree how can someone that is a tenant also be objective if they are aggressive and a litagator.