A recent superior court decision addressed some confusion that unit owners serving as trustees may have concerning their individual relationship with condominium trust’s counsel, particularly in a situation where the individual brings a derivative action against the condominium trust claiming to represent the interests of the association, as a whole.

This case highlights some confusion that may arise when an individual unit owner, who also serves as trustee, sues the condominium trust in a derivative capacity.

In the suit, a unit owner, who is also a trustee of the condominium trust, asserted, among other claims, a derivative claim against the condominium trust and claims against certain unit owners alleging, among other things, that certain weekly events held in one of the condominium’s commercial units violated the Master Deed. Specifically, the plaintiff alleged that the trustees had violated their fiduciary duties to the condominium trust by refusing to take enforcement action against the subject unit owner to prohibit the hosting of the events.

The condominium trust’s attorney, who also acted as general counsel for the condominium trust, filed an appearance on behalf of the condominium trust. The defendant unit owners hired their own counsel.

Shortly thereafter, the plaintiff moved to disqualify the condominium trust’s counsel, contending that he, individually, had an established attorney-client relationship with the firm that precluded any members of the firm from representing any party in a matter in which he was involved.

In support of the Motion to Disqualify, the plaintiff argued that he had previously had communications with the firm concerning a number of matters relating to the condominium, though none specifically related to the matters at issue in the lawsuit. The plaintiff argued that he, individually, had an attorney-client relationship with the firm as a result of these communications, and that by filing an Answer with the court on behalf of the condominium trust, the firm would be “simultaneously” representing him and the condominium trust concerning all of the condominium’s matters, including those raised in the suit.

The condominium trust opposed the Motion to Disqualify, arguing that there was no conflict and that the plaintiff could simply be excluded from communications between counsel and the condominium trust concerning the litigation.

The plaintiff’s Motion was ultimately denied, with the court including a written finding in its decision that “the plaintiff [had] not shown the existence of an attorney-client relationship between him individually and counsel representing the Board of Trustees.”

This case highlights some confusion that may arise when an individual unit owner, who also serves as trustee, sues the condominium trust in a derivative capacity.

A condominium trust’s counsel represents one client: the organization of unit owners. Counsel does not represent any trustee in their individual capacity, or in some separate capacity “as trustee.” An organization of unit owners is sometimes sued by naming the individual trustees “in their capacity as trustees,” but that is an anachronistic way of naming the organization of unit owners when it is a trust.

The fact is, there is no conflict when a condominium trust’s counsel defends a condominium trust in a suit brought by a trustee. As counsel represents the condominium trust, as a whole, an attorney-client relationship is formed only with the board, and not between counsel and individual trustees. Once suit is filed, the plaintiff trustee is simply excluded from any discussion between counsel and the board related to the action. This can be easily achieved through instruction to the condominium trust as to how to maintain confidentiality and separate privileged communications concerning a suit while board members openly engage and participate in unrelated day-to-day operations of the condominium.