Abraham Lincoln once said, “Discourage litigation. Persuade your neighbors to compromise whenever you can.  As a peacemaker, the lawyer has superior opportunity of being a good man. There  will still be business enough.”  

 Certainly since good old Abe’s time, interpretations of lawyers have varied, however, possessing the ability  to compromise and be a peacemaker are characteristics co-op and condo boards  seek. Whether a building is a large condominium or small walk-up co-op, having  competent, accessible legal counsel is vital, with the professional in question  serving as both a legal guard dog of sorts as well as a trusted ombudsman.  

 Finding an Attorney

 When it comes to finding quality representation, Manhattan-based attorney Adam  Leitman Bailey of Adam Leitman Bailey, PC says using referrals is the best way  to go. “I recommend board members ask other board members from other buildings—number one, ask other managing agents, and number two, other attorneys,” Bailey advises. “You want to ask people in the industry who are the best. I would interview at  least three. Many boards establish a subcommittee, either people that are  already on the board or those who want to donate their time to go on a search  for lawyers,” he says.  

 Like Bailey, Jeffrey S. Reich a partner with the Manhattan-based law firm of  Wolf Haldenstein Adler Freeman & Herz LLP says that a firm’s reputation is a key building block to attracting new clients. “The great majority of buildings have a relationship with an attorney.  Relationships are passed on and bridged one board to the next. If a board is  not happy with their current attorney, they will usually elect one or two  people to do an exploration into finding counsel,” Reich continues. “They will ask their accountant, their managing agent, conduct online research,  or attend seminars.”  

 Boards can also look to local real estate organizations such as The Council of  New York Cooperatives & Condominiums (CNYC) to find counsel, David L. Berkey a partner with the law  firm of Gallet Dreyer & Berkey in Manhattan suggests.  

 Compatibility, customer service skills and resources are the main considerations  boards should take into account before settling on representation, Bailey says.  “Now remember, it's not just who's the greatest attorney in the world, it's also  who is the best fit for the building,” he says. “These are the things you want to watch out for when hiring an attorney: No. 1,  customer service: How fast are they returning their calls and emails? At my  firm we have a rule where all calls and emails must be returned within 24  hours, but usually it's in minutes. The second biggest complaint is that firms  don't have landlord-tenant departments. So associations spend a lot of money on  litigation. If you have building that has high arrears and you are a  cooperative, you want to make sure the firm you are hiring has a  landlord-tenant department,” he says.  

 Moving Forward with Counsel

 When securing new representation or revisiting an existing professional  relationship, a board must look at their respective bottom line, which is  always the budget. Contracts and fees run the gamut with each firm taking a  different approach, and individual attorneys within a given firm charging  different amounts for billable hours depending on tenure, experience, and  credentials. Fees can range anywhere from $150 to upwards of $400 per hour,  depending on the situation and the attorney involved.  

 According to Bailey, Reich and Berkey, the majority of attorneys charge an  hourly rate.  

 Reich, whose firm represents upwards of 250 co-ops and condos, explained they do  not employ retainers. “We find that after representing co-ops and condos for so long, very rarely are  we reinventing the wheel. We’ve seen it. We’ve done it. We can handle it. We find it is cost-effective to pay-as-you-go,” he continues. “There are some years we will work very closely with a client and will have to go  to all their board meetings and attend special meetings, but once issues are  resolved we might only see them once a year at their annual meeting.”  

 Co-op and condo boards are not exactly apples and oranges, but they do require a  tailored approach to handling pressing legal problems. “The differences are slight,” Berkey says. “The type of work that is done with condos is slightly different than  cooperatives because in a co-op you have a landlord tenant relationship and in  a condominium you have an association of owners—the enforcement mechanisms for collecting money are different in each. But  issues which are common are contracts for repair of the building, dealing with  employees, dealing with relationships between the unit owners or apartment  owners in a co-op. The biggest difference is both in the enforcement mechanism  and the financing situations because cooperatives much more easily attain  financing than condominiums for major projects,” he says.  

 What Your Money Gets You

 Once you’ve found an attorney and negotiated the financial aspect of your relationship,  it’s important to know what your board can reasonably expect of him or her.  

 Your legal counsel should, of course, be aware of the issues pertaining to each  individual co-op or condo his or her firm represents. To stay current in the  issues facing your board, your attorney should try to attend as many board meetings as possible. In addition, your lawyer  should obviously have extensive knowledge and experience dealing with real  estate law, corporate practice, contracts and other governing documents, and  litigation. Your attorney should be available to assist in issues of financing,  leasing, defaults, tenant disputes, and drafting documents, and should make him  or herself available to answer general questions as they arise—returning phone calls and answering inquiries in a timely fashion should be any  good attorney’s top priority.  

 When Legal Issues Arise

 While the idea is to have smooth seas on which to sail, problems inevitably  arise. While this is common in both co-ops and condos, the larger the building,  the higher the incident rate.  

 When it comes to disputes among shareholders and fellow unit owners, the board,  as part of its duty, should try and help them resolve the issue order to the  matter escalating to an unnecessary litigation, Bailey says. “Most squabbles with residents, the co-op should be able to handle themselves,” he says. “The most common problems today are smoking and noise. And those are much better  resolved than spending an incredible amount of money on legal fees. It's much  better resolved if you bring the smoker and the complainer in together and you  talk about ways to alleviate the problem or separate them together.”  

 Reich urges boards to keep the lines of communication open with each other and  their counsel in order to avoid legal disputes. “Often times unit owners and shareholders just feel like they're not being heard,  and that's what escalates these problems,” Reich says. “So I don't foreclose the possibility of having a board member reach out to the  disgruntled shareholder or unit owner or having the managing agent reach out  just because I'm involved. The danger is if an attorney comes in like a bull in  a China shop with very threatening letters and very aggressive conduct, it  could escalate things that might otherwise have been handled on a shareholder  to shareholder or board level.”  

 If self-mediation fails and a lawsuit commences between residents, counsel  usually won't get involved directly, Reich says. “If it's a neighbor on neighbor lawsuit and they don't bring in the board, while  a board might reach out and mediate a resolution, we usually don't get  involved,” Reich says. “We just do our best to make sure the condominium or co-op is not brought into a  litigation because that would not be in the best interest of the building.”  

 First Contact

 However, if a resident does sue the board over an issue, Reich explains that the  managing agent or board member would contact the firm. “The first thing we do is make sure they respond quickly, because there is a very  strict time frame to respond to a lawsuit,” he says. “The next thing an attorney should do when there's a lawsuit is make sure all the  applicable insurance carriers are put on notice. It's not unusual for an  insurance company to appoint a firm they have a relationship with to handle the  defense, but at the same time, the board might be comfortable having their  normal counsel liaise between the board and the insurance defense counsel.  Sometimes we can get appointed by an insurer as the attorneys and that's great  and seamless. Sometime we're not appointed and act as liaison. And sometimes  there is no insurance, so we're simply defending out clients and the idea there  is to protect the interest of the corporation and the condominium.”  

 Since an insurance company will be representing the co-op and condo and its  policy, the waters can get muddy. If a board prefers to have its counsel  represent them in the case, often the insurance company will contribute a  portion of the fee and the board agrees to pay the balance.  

 And what if the issue that arises is actually with the attorney? If you think  your lawyer isn’t holding up his or her end of the bargain with your building, don’t rush to judgment, but do acknowledge the problem directly and discuss the  issue with your lawyer and fellow board members—the problem could be nothing more than a miscommunication between your board and  its counsel.  

 As with any long-term relationship, occasionally, personality conflicts may  arise. Perhaps you’re more comfortable with a certain partner than with an associate, or your  attorney is having trouble working with a particularly stubborn board member.  According to the professionals, swapping cases because of differences in  personality is not uncommon among partners in a given firm. Partners or  associates might trade the co-ops or condos they are working with if the board  members have changed since hiring the firm and the dominant personality has  shifted in an unproductive way. In this case, legal counsel should be willing  to change their approach to fit the board’s current needs.  

 If efforts to resolve differences in an attorney and board’s relationship fail, it is in the best interest of both parties to cut ties. “A building can terminate its relationship with a law firm at any time,” Berkey says. “Professional obligations of lawyers mandate that their clients can discharge  them whenever they wish. The discharge may occur at the behest of the client  and sometimes law firms discharge clients because they don't get along. In the  former, when the client discharges the law firm, the law firm would expect to  have outstanding bills paid and the firm could assert a retaining lean on  client files in its possession until they were paid. And in the latter where  the law firm seeks to terminate the relationship, sometimes if it's in the  course of a lawsuit, the law firm, if the client objects, will have to seek  court permission to withdraw as counsel.  

 Advice From Counsel

 Experts agree that open communication is the secret to any successful  attorney-client relationship, and ideally, this entails boards being very clear  about what services they expect from their counsel. But what do attorneys  expect from their clients? Reich wishes for all of his clients to have a strong  understanding of the ins and outs of their buildings' governing documents, a  knowledge that will make legal matters run more smoothly for all parties  involved.  

 “It would be great if my co-op board members were familiar with what was included  in their bylaws, their proprietary lease and certificate of incorporation, and  condominium owners [understood] what's in their declaration and condominium  bylaws,” Reich says. “If they have a working knowledge of the document, they're really ahead of the  game and we can be productive in our discussion and dealing with any issue that  faces them because those are the guiding principles of what the board has to do  and how the board has to operate. An educated client is very helpful because  you move right on to the problem and there is no learning curve.”  

 Aside from his recommendation that boards designate a sole liaison to  communicate with counsel to keep legal costs down for the client and receipt of  redundant phone calls and emails at a minimum for attorneys, Bailey urges board  members to remain kind and civil to their peers, despite disagreements and  disputes. “The client should never insult anyone—you should always be respectful,” Bailey says. “You're not going to get very far if you are insulting other board members or  other shareholders. Boards need to remember you get a lot more with honey than  you do with the bat. And the honey is much less expensive than hiring the bat,” he says.    

 W.B. King is a freelance writer and a frequent contributor to The Cooperator.  Editorial assistant Enjolie Esteve contributed to this article.