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Old 06-12-2008, 08:50 PM
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Counsel's Bad Direction?

What is the name of your state? Georgia

Can an HOA lawyer who is advising a neighborhood board to discriminate against one neighbor for an offense that four other neighbors and an ACC and board member are currently violating be disciplined in Superior Court?
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Old 06-12-2008, 08:54 PM
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I would think so. It sounds to me like the board members in violation have a definite self-interest, which creates liability.

Proper counsel should advise against that.
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Old 06-12-2008, 09:16 PM
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Even when you phrase it like that, NO. It is not a breach of ethics, nor is it malpractice to advise a client to treat differing members of an association differently. Only if the discrimination is for a prohibited reason would there be a claim of malpractice. Then, only the party in privity would be able to report the attorney. (Well, anyone can report. Only a person in privity will have the report dealt with.)
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Old 06-12-2008, 09:24 PM
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Well, the prohibited reason is that the laws of the 'hood state that selective enforcement or discrimination of any kind is not allowed.
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Old 06-13-2008, 11:02 AM
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The malpractice-resulting prohibited reasons considered "discriminatory" are related to the equal protection clauses/theories of the federal or state constitutions. It is not related to statutory or HOA rules.
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  #6  
Old 06-13-2008, 11:14 AM
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No, no, I wasn't referring to the ERPA. The verbiage is in the actual covenants of the neighborhood.
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Old 06-13-2008, 12:11 PM
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I know. In those situations, even if it were malpractice, only the person in privity could make a compliant to the Bar which would result in an investigation.
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  #8  
Old 06-13-2008, 07:07 PM
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As suggested by Tranquility, ethics issues result in a complaint to the Bar and an investigation, not a proceeding in court. The neighbor who is complaining of the disparate treatment can't request an ethics investigation against the association's attorney, or bring an action in court against the attorney.

The neighbor's claim is against the HOA for its allegedly selective enforcement of the HOA rules.
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