Don’t Repost Misleading Statements About Other RE Pros

Dear Shannon: I’m a longtime broker and run a large, well-known brokerage. Recently, certain behavior was brought to my attention regarding one of my top sales associates, and I’m a little concerned. Evidently, my top sales associate has been reposting false, misleading statements on social media about a local appraiser and the businesses of a couple of international real estate brokers.

I shared my concerns with my sales associate. The associate said it’s nothing to worry about, explaining that while they knew the statements were false or misleading, they were only reposting statements made by others. The associate further explained that even if they made the statements themselves, the Code applies only to other real estate professionals, and the statements were about a local appraiser without a real estate license and a couple of international brokers who rarely practice in Florida.

My sales associate doesn’t think this is anything to worry about. But, I don’t like it, and I told the associate I thought it was unprofessional, that it was bad for my brokerage’s reputation and that if it didn’t stop I would take disciplinary action internally. 

I’m concerned this might be a violation the Code of Ethics but don’t want to overact. – Concerned

Dear Concerned: Yes, this is a potential violation of the Code of Ethics, and no, I do not think you are overreacting.  NOTE: For the purpose of this article, I’ll only discuss a potential Code of Ethics violation, but there may be other reasons why Realtors® should think twice before posting &/or reposting false or misleading statements about other real estate professionals and their business practices. Those “other reasons” could include potential civil liability and antitrust implications, which we won’t get into in this article.

Your sales associate reposted misleading statements about a real estate appraiser and the businesses of international real estate brokers. This IS something to worry about. The associate said they knew the statements were false or misleading, which seems to directly violate the prohibitions of Article 15. However, your sales associate points out two reasons why they claim the Code doesn’t apply; first, your sales associate didn’t make the statements in question and was just ‘reposting’ the statements that other people made and; second, a real estate appraiser and international real estate brokers are not considered real estate professionals under the Code.

Let’s look at sections of the Code that might apply to your situation.

Article 15 states “Realtors® shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses, or their business practices.” (Amended 1/12) (emphasis added.)

Notice the language in Article 15 doesn’t expressly state “reposting” statements is an issue, nor does it provide a definition of ‘real estate professionals.’ We’ll have to go to different sections of the Code of Ethics and Arbitration Manual to address both of your sales associate’s arguments.

First, let’s look to a Standard of Practice (SOP) on point to help us understand what is meant by Article 15. Remember the Standards of Practice serve to clarify the ethical obligations imposed by the various Articles.

SOP 15-2 states:  The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses, and their business practices includes the duty to not knowingly or recklessly publish, repeat, retransmit, or republish false or misleading statements made by others. This duty applies whether false or misleading statements are repeated in person, in writing, by technological means (e.g., the Internet), or by any other means. (Adopted 1/07, Amended 1/12) (emphasis added)

Your sales associate claims the Code doesn’t apply because the associate didn’t make false or misleading statements personally but were simply reposting what others had already stated. SOP 15-2 directly refutes this, by expressly articulating that the duty under Article 15 to not knowingly make false or misleading statements includes not repeating or republishing such statements made by others. In addition, SOP 15-2 explains this duty includes not repeating or republishing such statements by technological means, including on the Internet or by any other means. Your sales associate knew the statements were false or misleading and repeated or republished those statements. So far, this continues to look like a violation of Article 15.

However, your sales associate’s second contention is that a real estate appraiser and international real estate brokers are not considered real estate professionals under the Code. We’ll go to Part 1, Section 1: Definitions Relating to Ethics of the Code of Ethics and Arbitration Manual for the definition of ‘real estate professionals’ which subsection (w) states: “Real estate professionals”, for purposes of Article 15, are those engaged in the disciplines of real estate specified in Article 11. (Adopted 5/22)

Next look for the disciplines of real estate specified in Article 11 which states: “The services which Realtors® provide to their clients and customers shall conform to the standards of practice and competence which are reasonably expected in the specific real estate disciplines in which they engage; specifically, residential real estate brokerage, real property management, commercial and industrial real estate brokerage, land brokerage, real estate appraisal, real estate counseling, real estate syndication, real estate auction, and international real estate. Realtors® shall not undertake to provide specialized professional services concerning a type of property or service that is outside their field of competence unless they engage the assistance of one who is competent on such types of property or service, or unless the facts are fully disclosed to the client. Any persons engaged to provide such assistance shall be so identified to the client and their contribution to the assignment should be set forth.” (Amended 1/10) (emphasis added)

Your sales associate points out two reasons why the Code doesn’t apply. Their second argument is that a real estate appraiser and international real estate brokers are not considered real estate professionals under the Code. The combination of the definition of real estate professional under Part 1, Section 1: Definitions Relating to Ethics and the real estate disciplines listed in Article 11 directly contradict this in plain language. Real estate appraisal and international real estate are disciplines of real estate and for purposes of Article 15 and are within the definition of “real estate professionals.”

You are correct to be concerned about your sales associate reposting false or misleading statements about other real estate professionals. Not only is this behavior unprofessional, but it’s also a violation of the Code of Ethics. Oh, and don’t forget other laws and rules may apply.

Shannon Allen is an attorney and Florida Realtors® Director of Local Association Services.

Note: Advice deemed accurate on date of publication.

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