New York State Bar News, March/April 2004, the New York State Bar Association Annual Meeting edition.

Wolf packs, elephant herds, and homeowners' association boards: do they have anything in common?

According to Lewis C. Taishoff of New York (A. Edward Major), they do - inherent vying for position of top dog. And when it comes to representing HOA's, condominiums or co-op boards, an attorney needs to be very aware of this internal positioning for leadership, and whose interest the attorney is actually there to serve.

Taishoff spoke about creating, maintaining and terminating the attorney-client relationship at the program of the Real Property Law Section's Committee on Condominiums and Cooperatives. He was one of the several speakers who addressed advanced topics in condominium, cooperative and homeowners association law.

Leader of the Pack
"There is a dynamic in organizations," said Taishoff. "We all know about wolf packs, we all know about elephant herds, where the leader run around trumpeting loudly, or growling, snapping, or brandishing their tusks, and otherwise marking their territories. Boards of managers, boards of directors tend to be a little neater in their process than the wolves or the elephants, but I would submit the underlying behaviors are analogous."

He said the attorney must remember who their client is in this situation. "Is it the alpha male or alpha female on the board? It is the greatest good for the greatest number? Do we have a situation where we are representing - as with a condominium - an unincorporated association? Or are we representing a zookeeper, as I call them, the managing agent or the professional manager?"

Taishoff also discuss creating and maintaining proper and thorough documentation throughout, such as retainer agreements, letter of engagement, disengagement letters, material related to permissive arbitration and fee disputes, and so on.

"I would suggest that a written fee agreement should be part of any retention at the very outset," he said, noting that it will clarify for the attorney and client what the client expects the attorney to do, and it will minimize (but not eliminate) eventual fee disputes.

He also suggested including the Statement of Client's Rights & Responsibility, saying, "Like chicken soup, it can't hurt - and it might very well help."

Other speakers included David L. Berkey of New York (Gallet Dreyer & Berkey, LLP), who covered two segments, and first dealing with fiduciary and other obligations, and the second with attorney-client conflicts of interest.

Howard P. Schechter of New York (Schechter & Brucker, P.C.) examined various types of meetings, voting, meetings run by outside entities, appointments of special committees, action without a meeting and judicial challenge.

Ira S. Goldenberg of Scarsdale (Bertine, Hufnagel, Headley, Zeltner, Drummond, & Dohn, LLP) presented two segments, covering attorney liability issues and attorneys as transfer agents. Goldenberg also served as program chair.

Joseph M. Walsh of Saratoga Springs (Walsh & Walsh, LLP) was the program moderator. Walsh and Berkey are committee co-chairs.