Archive for January, 2015

Adrian Adams vituperates again

Sunday, January 11th, 2015

Eminent California attorney Adrian Adams, of Adams Kessler PLC, specializes in sneer words. If you want an attorney who understands that most issues involve difficult trade-offs, with good arguments on each side, don’t hire Adams. He won’t give you the kind of advice you need.

Here’s his latest blast: The California legislature is a “sausage factory”. It adopted new statutes in 2014 that took effect on 1 January 2015. One of these qualifies as the “ugliest”. What’s so ugly about it? Adams says that it “makes a mess of Internal Dispute Resolution (IDR).”

OK, how does it do that? Well, it “gives owners the right to bring a lawyer with them to an IDR meeting. … They can do so without prior notice, i.e., ambush the board. Moreover, there is no mediation privilege. That means anything said in IDR can be used against either party.”

Adams is talking here about common interest developments, i.e. housing communities such as condominium associations and cooperatives, in which about 25% of Californians now reside. The association is required to offer Internal dispute resolution to its members, to help resolve disputes between the association and members short of litigation.

Adams despises the fact that now each side has the right to to bring somebody along to an IDR meeting to help explain his, her, or its position to the other side. That “somebody” may be anybody, including an attorney. And neither side has to tell the other side in advance who is going to be coming along.

Being utterly one-sided, Adams makes sure not to tell his readers about the benefits of this change. Suppose, for example, that the dispute is between a big association with thousands of members and some member who speaks limited English and isn’t very well informed of his or her legal rights. The association selects one of its most articulate and aggressive directors, possibly one with legal training, to go to the IDR meeting. In the old days, the overpowered member would confront the director alone. The director could outtalk the member, utter warnings and threats, and hand the member a jargon-laden and legally binding agreement to sign, “or else”. If the member signed it, the dispute would be over, and the member would incur all the deprivations provided for in the page of gobbledigook signed under de facto duress. That old regime warmed Adrian Adams’s heart. He adored the idea of a sophisticated board of directors cowing an errant member into submission. Now, to Adams’s chagrin, an IDR meeting might actually be a meeting of approximate equals, able to seek a fair and durable agreement.

Unlike Adams, I admit that there are good arguments both for and against the new provision. Adams himself tries to provide one. He says that the Rules of Professional Conduct prohibit an attorney accompanying the member from discussing the dispute in an IDR meeting, because the association has an attorney who isn’t there. So far so good, but Adams’s argument can be challenged. The prohibition applies only if the association’s attorney represents the association “in the matter”, not just in general. And, if the association’s attorney did, in fact, represent the association in the dispute that is undergoing IDR, one would reasonably expect the attorney to be there. Then the shoe could be on the other foot: The member might have an attorney representing the member in that dispute, and, if so, the association’s attorney would be prohibited from talking with the member about it unless the member brought his or her attorney along to the IDR meeting.

Similarly, Adams makes a good point about the lack of prior notice, even though he goes overboard in using the term “ambush”. But his point has a weakness: The statute itself doesn’t require notice of who will attend an IDR meeting, but it also doesn’t prohibit associations from adopting IDR procedures that require such notice.

Moral of the story: You are not well-served by an attorney that further inflames your already existing passions, like Adrian Adams. A good attorney will help you understand the motives and rationales of those who disagree with you, and thereby help bring about amicable resolutions. For that, look elsewhere.