Board’s ex-lawyer must return files

Question: Finally, our new board was able to get rid of an association lawyer who’d been here so long we secretly called him Mr. Fixture. It happened when all but one board director responsible for hiring him moved away.

Since that time, we’ve been asking the lawyer to return all association files, but he won’t give them to us. For more than 11 months he has put us off using various stall tactics and excuses. He says there are confidential things in the files about certain homeowners that he can’t and won’t give us.

We just learned that one director from the old board, who is no longer a board member, talks to this attorney almost daily even though we’ve asked him to stop. The owner told us he has a right to talk to whomever he chooses.

We hired a new attorney to write Mr. Fixture and demand our files back. After three letters, there’s still no response, and none of our attorney’s phone calls were returned either. We’re filing a complaint with the bar, but this takes time. We need our files and documents back now. What do we do?

Answer: The association’s new attorney will know how to proceed to secure the files and documents, but lodging a formal complaint with the bar is a good first step.

At the same time, the board may take legal action against the old lawyer to require him to turn over the association’s files. Under Evidence Code Section 175, the association is the “client” that has the attorney-client relationship regardless of who is on the board. Each board represents the association as the client. The lawyer is obligated to return the association’s files, all related documents and paraphernalia, and he must do this on demand.

Under Rule of Professional Conduct 3-700(D) the attorney is required also to return promptly unearned fees paid in advance. Under Rule 3-110 and Bernstein vs. State Bar, an attorney must act competently, and failure to return client files and documents on demand could be grounds for discipline by the state bar.

In this case, the new board on behalf of the association decides how to handle its legal documents, not the old lawyer and not the new attorney. Should judicial action be required to obtain the association’s property, it is likely a court could order the lawyer to pay the association’s fees and costs for having to seek the action to return the files.

In most cases, an ex parte action can be brought. That is an action filed quickly and on short notice due to the emergency nature of the subject matter. A hearing can be held within 30 days or less requiring the lawyer to return all association files and documents. Taking that action still requires the association to hire an attorney.

If one homeowner is the reason the lawyer is not returning those files and documents, that owner can be sued for interfering with association business.

*

Questions can be sent to P.O. Box 11843, Marina del Rey, CA 90295 or e-mailed to NoExit@mindspring.com.