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An Article
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Court Documents Show That Homeowner Association lawyers Peters & Freedman Ask for Tens of Thousands in Non-Allowable Legal Fees
Court Documents Signed Under Penalty of Perjury
October 31, 2004
By
HOA Voices
(View author info)
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In reply to "Court Documents Signed Under Penalty of Perjury" the author of this article should be apprised of the fact that lawyers are forbidden from making or using "misrepresentation" (FRAUD) in oral and written representations to a Court of Law and are also forbidden from charging an "unconscionable or illegal fee".
These prohibitions are found in Business and Professions Code Section 6068 as well as the California Rules of Professional Conduct.
Recently, the December 2004 issue of "ADVOCATE", a monthly magazine published for attorneys who are members of the Consumer Attorneys Assocations of Southern California contained an article entitled "The 17 Quickest Ways to Jeopardize a Bar License" by Honorable Michaed D. Marcus (retired).
Of the 17 ways attorneys can get themselves into professional trouble, two such problem areas appear and are believed to be particularly relevant to the above referenced matter as follows:
"# 14. Make a misrepresentation to the Court.
Business & Professions Code section 6106. 'Actual deception is not necessary to prove willful deception of a court; it is sufficient that the attorney knowingly presents a statement which tends to mislead the court." [Davis v. State Bar (1983) 33 Cal.3d 231, 240 [188 Cal.Rptr. 441]. "Deceit by an attorney is reprehensible conduct whether or not harm results and without regard to any motive for personal gain." [Codiga v. State Bar (1978) 20 Cal. 3d 788, 793 [144 Cal.Rptr 404]."
and...
" # 17. Charge an unconscionable or illegal fee.
Rules of Professional Conduct, rule 4-200(A). An unconscionable fee is one that is "so exorbitant and wholly disproportionate to the services performed as to shock the conscience." [Herrscher v. State Bar (1935) 4 Cal.2d 399, 401-402 [49 P.2d 832]. "An illegal fee is one that is charged in violation of a statute. In the Matter of Phillips (2001) 4 Cal. State Bar Ct. Rptr. 315 ($500. fee charged in probate case without court approval and in violation of Probate Code)."
The victims of any misrepresentations by attorneys (CID/HOA legal counsel, defense counsel - or even their own legal counsel) or persons who have been subjected to unconscionable or illegal fees should seek out the above referenced article and other useful materials to educate themselves on their consumer rights both as CID/HOA residents as well as consumers of legal services from
California attorneys.
The fact that a CID/HOA attorney may tell you "I represent the Board, not the individual owners" or "I can not speak to you, because you have your own attorney", or "I am defense counsel, not your attorney" in no manner excuses any attorney from complying with the legal and ethical requirements of the issues discussed in paragraphs #14 and #17 above.
Posted Mar 5 2005 9:56AM PST
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Zelda Goldberg
, California |
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Scary. Perhaps this sends the message that homeowners must find out to see who the homeowner association lawyers are that represent the HOA board of directors BEFORE BUYING a home in ANY homeowner association - whether a volunteer or mandatory HOA.
Besides that they say you must get the following information as well:
CCR's
Bylaws
Rules
Regulations
Related sections of the:
Corporate Code
Civil Code
Business and Professions Code
Municipal Code
Health and Safety Codes
and who knows what other codes might apply............
Several years worth of minutes
Several years worth of financial documents
Several years worth of tax returns
Copies of the HOA's master insurance policies
A record of the HOA's litigation history (really important)
Current and former names of the lawyers/lawfirms representing the HOA
Current and former names of the HOA's managers/management companies
Find out whether or not the lawyers or managers are a part of the Community Association Institute or the National Board of Certification of Community Association Managers - if they are - proceed with caution. (We wouldn't buy into an HOA period!)
Background checks on the individual Board of Directors as well as the individual property managers, lawyers, insurance brokers and other HOA vendors including maintenance vendors.
Request a complete and current copy of the HOA membership roster and find out if there are any convicted felons/child molestors who are members of the HOA.
Check with the Department of Health to see if there have been any health code violations of common areas like the pools, jacuzzies or playgrounds.
Check to be sure those common area liabilities are up to current State and Federal code standards.
And remember - if you DO decide to buy (that is assuming if you get all of the above information) double check to make sure NONE of the information has changed before you sign the closing documents.
In the several months it can take to close a deal on a home - let alone the complicated process of buying a home in an HOA - the homeowner association COULD have already been served with a lawsuit (or two or three) and you wouldn't want to buy into a lawsuit would you?
Perhaps the better question is - DO YOU REALLY STILL WANT TO BUY INTO A HOMEOWNER ASSOCIATION??????
Posted Nov 1 2004 7:37AM PST
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