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Board has no basis to 'censure'

February 22, 2009|Stephen Glassman and Donie Vanitzian

Question: I am a board member and received a letter from the association attorney that says, "Because of your breach of duties and the litigation risk that you are causing, the board has the right to censure you for your behavior."

I haven't done anything to warrant any disciplinary actions. Our association boards have never censured anyone here before -- in fact I've never heard of censure in this context. Also, "censure" does not appear in any of our association governing documents. I do not believe that the board authorized the attorney to write that letter to me. On what authority is the association's attorney acting?

Answer: Boards, not attorneys, are responsible for running the association's business, and they don't have the authority under the Davis-Stirling Act to censure anyone, let alone another board director. The term "censure" does not appear in the act, and while it does appear in the Corporations Code, it pertains only to securities laws, not to nonprofit mutual benefit corporations.

That letter seems to be an attempt to keep you from exercising your rights of free speech and, more important, from performing your obligations as a director by making certain that board actions are thoroughly deliberated. At its worst, this is a transparent threat and an attempt to bully you into silence.

Pursuant to California State Bar Rules of Professional Conduct 3-600, an attorney representing an organization shall conform his representation to the concept that the client is the organization itself. Accusing you individually of breaching your duties without stating exactly what duties were breached belies this attorney's obligations to his client, the board, as does his failure to explain exactly what "litigation risk" you are causing.

Without notice and an opportunity to be heard, there can be no action that purports to deprive you of a right, let alone censure, whatever that means.

This attorney's attempted intimidation serves no proper purpose, breaches his obligations under the law and oversteps the bounds of his authority. His job is to do what the board directs him to do and not act at the whim of some directors who may have it in for another. If the intention is to silence dissent on the board, and the letter is not by board direction, this lawyer is committing ethical violations that should be reported to the State Bar (

Without a legal basis, either in California law or in your association's governing documents, this attorney's acts are without force and effect. If by chance the board authorized the letter, it had no legal basis for doing so and the attempt to "censure" you is more likely vindictive, if not retaliatory.


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