1. 2017 Attorney Seminar
9/13/2018
Welcome to the National Association of REALTORS® Professional Standards Attorney Seminar

2. Page 4
PS Trivia, Ice Breaker

3. Professional Standards Due Process
Refer for hearing on mandatory or voluntary basis.
Staff
Grievance Committee
Hearing Panel
Ethics Complaint
Arbitration Request
Refer for a hearing with or without amending.
Board of Directors
After hearing, award final, if no procedural review requested; otherwise, hear procedural review.
After hearing, affirm decision if no appeal filed; otherwise, hear appeal.
Dismiss – “appealable” to Board of Directors.

4. Elements of Due Process
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Elements of Due Process
Timely notice of specific charges
Adequate time to prepare a defense
Ability to hear testimony and cross-examine
Opportunity to tell your story
Right to counsel
Impartial hearing panel
Appropriate, authorized sanctions
Availability of appeal/procedural review

5. Due Process Case Studies
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Due Process
Case Studies

6. Hearing Panel Decisions
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Findings of Fact and
Hearing Panel Decisions

7. Components of Ethics Hearing Panel Decision
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Components of Ethics Hearing Panel Decision
Findings of Fact
Conclusion
Prior Violations, if Any
Discipline
Rational for Discipline
Consequences for Noncompliance

8. Ethics Hearing Panel’s Decision
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Ethics Hearing Panel’s Decision
Findings of fact should be:
comprehensive
succinct
provide rationale
written as if the reader knows nothing about the case
written out even if no violation found

9. Ethics Hearing Panel’s Conclusions
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Ethics Hearing Panel’s Conclusions
Which Article(s)?
Violation or no violation?
Why?
What is the standard of proof in ethics?

10. Ethics: Authorized Discipline
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Ethics: Authorized Discipline
No discipline
Cease or refrain from conduct in violation of Code
Letter of warning
Expulsion from membership for a period of 1 to 3 years
Letter of reprimand
Education
Suspension or termination of MLS privileges
Fine not to exceed $15,000
Suspension for not less than 30 days nor more than one year
Note: Probation is not considered discipline

11. Ethics: Determining Discipline
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Ethics: Determining Discipline
Specify type of education, when and where.
Specify time frame for compliance.
Include length of suspension/expulsion, when it begins and when it ends.
Provide for additional discipline if member does not comply with original discipline.
State conditions for reinstatement/readmission.

12. Ethics: Determining Discipline
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Ethics: Determining Discipline
Sanctioning Guidelines
Follow “disciplinary theory.”
Use Appendix VII to Part Four of the Code of Ethics and Arbitration Manual.
Public Trust
misappropriation of funds
fraud
discrimination

13. Ethics: Executive Session
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Ethics: Executive Session
Association option, whether counsel/staff attend
Case stands as submitted
Clear, strong, and convincing evidence is the standard of proof
Cannot amend complaint or ask for more information/documentation
Determine findings and discipline
A majority sign
Dissenting opinions are allowed

14. Hearing Panel Decision
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Critiquing
Hearing Panel Decision

15. Ethics Hearing Role Play
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Ethics Hearing
Role Play

16. Findings of Fact Additional Information
Weeya was found in violation of Article 2 three years ago, misrepresenting the zoning of a property she had listed.
timely complied with $1,000 fine and three hour ethics class

17. Arbitration - An Overview
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Arbitration - An Overview

18. Bases for Arbitration Arbitrability
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Bases for Arbitration
Arbitrability
Successful transaction: sale that closes or lease that is executed
contractual dispute or specific non-contractual dispute as defined by Standard of Practice 17-4

19. Arbitration Award There are no findings of fact in arbitration.
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Arbitration Award
There are no findings of fact in arbitration.
After a hearing, the panel decides which party is entitled to the award, based on a preponderance of evidence.

20. Arbitration Award Payment
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Arbitration Award Payment
An unpaid award typically can be judicially enforced.
Associations will require the non-prevailing party to, within ten (10) days, either pay the award to the prevailing party or deposit a like amount with the association.

21. Procuring Cause
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The proximate cause; the cause originating a series of events which, without break in their continuity, result in the accomplishment of the prime object.
– Black’s Law Dictionary, Fifth Edition

22. Procuring Cause Factors
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Procuring Cause Factors
There are no pre-determiners.
Writing a successful offer, making the first showing, or the existence of an agency relationship do not, in and of themselves, determine entitlement.
Arbitrability and appropriate parties.
Relevance and admissibility.
Communication and contact – abandonment and estrangement.
Conformity with state law.
Consider the entire course of events.

23. Mandatory or Voluntary?
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Arbitrable or Not?
Mandatory or Voluntary?

24. Professional Standards “What-ifs”
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Professional Standards “What-ifs”

25. Panel Discussion

26. Alternative Dispute Resolution
Mediation of Potentially Unethical Conduct, page 76 of the Code of Ethics and Arbitration Manual
Model Citation Policy, page 52
Ombudsman Program, page 59

27. Ombuds, Mediation, Arbitration
No cost
Low-cost
Moderate cost
No delay
Little delay
Moderate delay
Maximum flexibility, may open dialogue
Maximum range of solutions
Win/lose/split
Parties control outcome
Arbitrators control outcome
Uncertain closure
Definite closure
Maintain/improve relationship
May harm relationships
Prospective
Retrospective
Communicate typically via phone
Mediation usually
held in person
Arbitration in person (unless remote)

28. Answers to Your Questions and Local Concerns
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