A change in the Internal Dispute Resolution statutes that took effect January 1, 2015 allows members to bring an attorney or other person with them to an IDR meeting with a board member. (Civ. Code §5910(b); §5915(b)(4).) This change in the law has created risk for associations.
IDR Risks. The change makes no provision that owners give notice to the board that they intend to bring an attorney, i.e., they can ambush the board member designated to meet with them. Moreover, there is no mediation privilege. That means that anything said in IDR is not confidential can be used against either party in subsequent litigation.
Another Person. If a homeowner brings a non-attorney to meet with a board member, it becomes a two-to-one situation where what is said in the meeting may not be accurately reported by the disgruntled homeowner and his advocate. So as to avoid this problem, the board should appoint two directors to meet homeowners who request IDR.
Attorney. If a homeowner brings an attorney to an IDR session, the meeting should immediately be rescheduled to a later date when the association's legal counsel can attend. The homeowner has no basis to complain about the postponement since California's Rules of Professional Conduct prohibits attorneys from communicating with parties without their legal counsel present:
While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. (Rule 2-100(A).)
Recommendation: Whenever a homeowner requests IDR, send a letter confirming the request and setting a date for the meeting. The letter should include language asking for advance notice if the owner intends to bring a lawyer to the meeting. Include a statement that bringing an attorney without prior notice will result in rescheduling the meeting so the association's legal counsel can attend.
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