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"I'm not the attorney for everybody"
A legal profile on Neal McCulloh
by Bob Biederman
A native Floridian with a pinstriped suit, white shirt and conservative paisley tie sits behind the mahogany legal partners desk and shares some innovative legal thinking with a visitor. Neal McCulloh is a combination of establishment lawyer and Machiavellian creative legal mind. His opinions are unbridled by conventional thinking and stimulating to the attentive listener who can keep with his revolutionary reasoning. In a whirlwind 90 minute interview, McCulloh takes you on a legal roller coaster ride that climbs the mountain of document amendment, zooms down the exhilarating slope of construction defect litigation, cruises through the wide turns of rules enforcement and comes to a halt at the collections window.
Neal is not so concerned with what is politically correct, but more with the art of creative lawyering that finds him using a strategy of oblique litigation. He explains that dealing in black and white interpretations of the condominium and HOA law is not the only route to take. He prefers attacking issues from angles undreamed of by his adversaries and winning the judgments before the legal tide comes in. He brings this creativity to almost every aspect of his practice.
The board that requests a document review and amendment project is met with the challenge of "Get your membership to o.k. the proposed changes before I get started. Otherwise you're likely to run up a sizable legal bill for nothing. And by the way, the first amendment we want to pass is to bring the percentage of unit owners needed to amend the document down to a reasonable simple majority. That will make the rest of our work a lot more viable." While having a normal concern for making a living, Neal is a bit more concerned with the practicality of doing business on a long-term basis with his clients. Running up a needless bill for document amendment that can't be legally approved is not a strategy he embraces. His constant advice to his client boards focuses on preventive law. Use your attorney when you have to, but establish the board as a legitimate, consistent governing body that operates effectively and properly.
Document amendment is a fertile area for legal problems and there are probably a dozen basic changes that ought to be made to most bylaws, according to McCulloh. Reasonable attorney's fees should be made the burden of the delinquent homeowner who is subject to collections procedures. Fines imposed by the association should have an automatic lien attached to them, but, by law, generally cannot. Eliminate the "insurance trustee" requirement when a settlement is made for destruction of property. And, of course, make the amendment procedure more tractable. Reduce the vote needed to amend documents to a simple majority of the beneficial interest.
In looking at the Florida condominium statute, Neal just ruefully shakes his head. "The laws provide the battleground. There's so much ambiguity and room for manipulation that it invites abuse. Take a look at the recall procedure for board members. Because of the two 72-hour notice requirements placed on the board and the lack of proof needed in filing a recall request, the association could find itself with a new board within a week if one individual unit owner decided to create a problem and act less than honestly. It's a case where the letter of the law overwhelms the spirit of the intended result." If you don't understand, give Neal a call and he'll explain. We don't want to use these pages as ammunition for some of the loonier "condo commandos" out there.
Neal's basic advice to board members is to "Read the documents." You don't have to understand every word or memorize them. Just understand the direction and intent. "Make sure you abstain from voting and discussion on any topic that might be a conflict of interest." So many board members open themselves up to significant liability by appearing to be on a self-serving mission. "Directors & Officers Liability coverage is the second most important bill to pay next to your lawyer's," he smiles. "You're an unpaid volunteer doing a tremendous job. Don't end up having your honest efforts cost you your home."
Neal works with a strong team of legal professionals. The group of 15 includes the two partner attorneys, six paralegals, three of whom concentrate on collections, and a group of administrative assistants who keep the firm striding forward. At his right hand is Arlene Ring, who has significant and comprehensive dealings with most of the new associations taken on by the firm. Along with working closely with Neal on the day to day legal affairs of the clients, it is Arlene's responsibility to make sure that all the new client associations are well oriented to the capabilities and procedures of the firm. Getting them off to a good start is a most important facet of the relationship. Handling the creative solutions that set Neal apart from the rest of his colleagues accounts for the string of successes the firm and its clients continue to enjoy. Associations in Brevard County requested Clayton & McCulloh to open an office on the east coast. The firm has decided to open a satellite office there.
Neal McCulloh has a diverse yet solid understanding of the Florida condominium and homeowners association law and has built a team of professionals around him to execute legal solutions to the almost never-ending stream of challenges brought to him by his 150 association clients. He's not the lawyer for everybody; apparently not everyone needs such an aggressive pro who knows his law and provides creative stimulating solutions.