Q&A: Sue Me!

I live in an association in Central Florida that is rather small. The board recently got threatened with a suit from a unit owner, and while we'll be consulting an attorney soon, we're not sure how to interact with the unit owner should they go ahead with the lawsuit. We're also concerned how much a lawsuit could cost the association, and what to be prepared for on that end.

—Waiting in Orlando

“During litigation, there are Rules of Professional Conduct that must be followed by party representatives,” says Jeffrey Greyber, an attorney at Merlin Law Group in Tampa. “More specifically, Chapter 4 of the Rules Regulating the Florida Bar dictates how party representatives are to behave throughout litigation From these rules, the parties themselves can also largely glean how it is that they are supposed to behave. In part, these rules address privileges, confidences, and immunities. Just about all information and documentation exchanged exclusively between an attorney and an attorney’s client is shielded from discovery by any other party. This is called attorney-client privilege. But I underscore the word “exclusively”—beware that the sharing of attorney-client privileged information or documentation with a third-party will almost always spoil the privilege and will allow the opposition to discover same. Also, bear in mind that ordinary board minutes (i.e., board minutes not involving the association’s attorney) are often discoverable. This is not to say that board minutes will ultimately be admissible at trial, but discovery standards are less stringent than admissibility standards.

“In my world (which is the insurance world), attorneys’ fees and costs will almost certainly exceed six figures if the matter proceeds through verdict. But my clients (policyholders) can rest a bit easier in knowing that there is the possibility of fee shifting under Sections 627.428 and 624.155 of the Florida Statutes; i.e., there is the possibility of the insurance company paying my fees upon a resolution favorable to the policyholder. Notwithstanding the possibility of fee shifting in some contexts and the possibility of finding an attorney who will work on a contingency fee basis, and lest an association end up in financial distress, an association should carefully consider whether the reserves that it has in place at the outset of litigation can handle six figures in fees and costs. Of course there is always the possibility of special assessments, but that is often an arduous task, especially when it comes to litigation-related special assessments.”

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