LLC Has No First Amendment Right To Send Its Lawyer To Board Meetings

Usually when someone invokes her right to counsel, she usually has in mind the Sixth Amendment of the U.S. Constitution (or perhaps Article I, § 15 of the California Constitution).  Thus, I was surprised to see a case in which the plaintiff argued that it had a First Amendment right to counsel.

SB Liberty, LLC v. Isla Verde Ass’n, Inc. (Cal. Ct. App. Case No. D061261, May 22, 2013) involved a homeowner’s right to have a lawyer attend the board meetings.  The defendant was a California nonprofit corporation and its bylaws permitted any member in good standing to attend any meeting of the board, other than those designated as ”executive sessions”.  Now, this may seem surprising to some, but the defendant was a homeowners’ association subject to California’s Common Interest Development Open Meeting Act.  Cal. Civ. Code § 1363.05.  That statute, with some exceptions, provides that any member of an association may attend meetings of the board.  Thus, it would appear that the homeowner in this case was on firm statutory ground in asserting a right to attend, even without the added muscle of the First Amendment.

This homeowner, however, wasn’t Ozzie or Harriet.  It was a limited liability company organized under the Beverly-Killea Limited Liability Company Act, Cal. Corp. Code §§ 17000 et seq.  Because the lawyer was neither a member or manager of the LLC, he was not authorized to manage the homeowner’s business and affairs.  Moreover, the association’s protective covenants and restrictions prohibited the transfer of membership rights. 

For those interested in a more general take-away from this case, the Court of Appeal held that the association’s board had the authority to determine how to conduct its meetings, and thus “the power to prevent a nonmember . . . from attending and participating in those meetings on behalf of SB Liberty [the plaintiff] as its representative”.