Can attorney ethically seek default judgment against defendant who fails to answer if he knows complaint fatally defective?
Homeowners association, three member Board. Two seated, tie for third. One director (A) sues HOA seeking provisional director. Other director (B) will file to intervene to oppose. Because Board majority isn't available to hire attorney, HOA will fail to respond. Intervention motion won't be heard for 6 months. Assume the following: (1) service was defective; (2) complaint cites inapplicable statute to seek provisional director; (3) plaintiff was legally required to offer Alternative Dispute Resolution prior to filing case, and did not. Also assume: plaintiff's attorney was informed in writing by Director B of 1, 2 & 3, and knows that 1, 2, & 3 are true. Question: can plaintiff's attorney still ethically seek a default judgment when he knows his complaint had those three fatal defects?
Nathan’s Answer
HOA seems like it could really benefit from representation to file a motion to quash on service, file a demurrer to attack inadequate legal citations or to file a motion to compel arbitration if necessary. Neither tied director wants to step down, and no runoff election has been instituted it seems, and it would be a shame to have HOA default with additional parties being piggybacked onto any default, even if default is subject to begin with.
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