SHOULD LAW FIRMS BE RESPONSIBLE FOR DAMAGES?

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published September 8, 2008

It's bad enough if self-appointed board presidents don't know the laws and even put it in writing ("President" Andres Villegas letter dated July 29, 2008). Even if Villegas claims he has "great wisdom given only from God," it doesn't change the fact that Florida Statutes only require a 50% + 1 vote majority to recall the board.

Wherever Villegas’ wisdom really comes from, Florida Statutes don't require two-thirds of the votes of the membership. Latest the attorney, who is supposed to be the guardian of worldly laws, should have caught that mistake and made his client aware of this serious flaw in his wisdom!

But it gets even worse when the attorney for this association president sends out letters to the unit owners that seem to ignore the facts -- or show that the attorney didn't do his basic homework. (See letter from attorney Spencer Gollahon from The Coates Law Firm.) In his letter attorney Gollahan makes sure that he adds some disclaimers like "it is our understanding," but all in all the letter clearly shows that he just relied on statements of the president, who hired this law firm, without even checking for simple facts.

The letter states (quote): "Accordingly, it is our understanding that the recall ballots were served on Mr. Villegas who forwarded the ballots to the board of Directors, which held a meeting on August 5, 2008 at 7 p.m." A meeting that most likely never took place and was definitely not properly noticed. Minutes of this "meeting" were not made available to any unit owner.

The letter from attorney Spencer Gollahon continues (quote): "Further it is our understanding that the Board of Directors could not certify the recall ballots because they were insufficient to remove a director due to the insufficient number of unit-owners required for the removal of a director pursuant to Florida law and the governing documents of QHCA."

Since attorney Gollahon quotes Florida law, he should be aware that not certifying a recall at a public meeting [FS 718.112(2)(j)] triggers certain requirements, such as filing for recall arbitration with the DBPR, with minutes of the recall meeting attached. It is not up to the president or the association attorney to decide whether or not the recall is valid. The Arbitration Section of the DBPR hasn't received any such filing from the association or the association law firm.

Actually, the Unit Owners Voting for Recall filed for recall arbitration, mailing a MOTION TO CERTIFY RECALL PETITION with all the necessary documents and filing fees to the DBPR on August 8, 2008. So far, no decision from the DBPR, despite the fact that the Florida Statutes [FS 718.112(2)(j)4.] clearly state that in case of failure to hold such meeting the "recall shall be deemed effective and the board members so recalled shall immediately turn over to the board any and all records and property of the association."

The failure of the DBPR to act in a timely manner -- how long can it take to word a response to such a motion if the statutes are very clear in this regards? -- causes further confusion and financial problems in this association. The unit owners are especially concerned since they have found out that there is obviously no property insurance policy covering their buildings -- and that with hurricanes threatening Florida any damage would be devastating to their families’ financial welfare.

Despite all these facts, the association attorney -- according to his letter -- scheduled a meeting to give unit owners (quote) "the opportunity to learn about the current status of your community."

Sorry, but I consider this meeting more waste of association dues that could have been avoided if Gollahon had done his homework before writing such a letter and if he and "association president Andres Villegas" had bothered to follow Florida Statutes in the first place. I wonder why they are suddenly so interested in listening to the opinions of the unit owners -- after ignoring their wishes for such a long time and ignoring an official recall petition served by a process server.

These attorneys are called "association attorneys" for a reason. They should represent the interests of the association and its members, not just some board members -- or just a “president" -- who sign their checks. In this case it was all confusing, but as the association attorney it should have been Gollahon's professional duty to check out all the facts and see to it that the interest of all unit owners were protected -- and business procedures followed as required by law. Isn't that why associations hire attorneys? Don't these attorneys expect their bills to be paid by all owners, not just a chosen few?

Why should associations be required to pay these legal bills, when the work of these attorneys causes just more confusion? Attorneys should be held to a higher standard of professional conduct, especially since they charge quite a high hourly rate!