Attorneys, Condescension, Immaculate Perception and the NAR

by Jeff Kempe

Realtor, Associate Broker

Author website

It’s always dangerous – and not a little misleading – to extrapolate a whole from a part.  One of the problems facing the real estate industry is a phantom stereotype – generally negative – applied to all agents, when anyone in the business knows that the range spans the genius to the inept, the scrupulously honest to the corrupt.  I’d argue high professionalism for most, but in three short years in the business I’ve run into the gamut.

So I understand the pitfalls of where I’m going with this, but I’m going anyway:

Do law schools really have a required Applied Condescension class; and why is it so many attorneys have a self regard inversely proportional to their actual worth?

I admit some of this is anecdotal and personal: the only attorney I’ve ever had to hire I also had to fire; what she’d failed to accomplish in six months I managed on my own in six days. Recommended by a friend, she overpromised, under delivered and grossly overcharged. When I told her on her last billing I wouldn’t pay until she provided an itemization – which she never provided – she tried the intimidation game.  Didn’t work.  Oh, my, it didn’t work.

But much more recently and pertinent: First, there was this – Buying without an agent – written by an attorney at Rain City Guide.  Entirely self serving, badly argued with serious errors of omission, it generated some pleasant acrimony in the comment section – numbering over 150 – as well as a follow up rebuttal.  I’m not going to parse the whole thing, but you get the tone from the last sentence:

Regardless, for hundreds of dollars, you can save 3% on the purchase price, while getting legal services from an attorney, not an agent.

This is just another verse in an emerging chapter:  Save money and get better representation by using an attorney instead of a real estate agent!  Why?  Hey, who cares about home values, sewer scopes, oil tank decommissioning or elevation certs when you have this argument: “I’m an attorney, you’re not!”

The straw came a couple days ago.  I was at a meeting where an attorney had been invited to speak.  The topic was to be the writing of lease options, on which she spent two minutes; another forty five was spent on proving her cleverness.

First she interrupted an insurance provider who was offering to pull CLUE reports.  He’d apologized for delays in the past, but said he’d “…hired a girl in Denver to help out and things sho…” 

“WOMAN!!  This is a room full of professional WOMEN.  You should know better.”  He said she was young – he wasn’t over twenty-five so I’m thinking eighteen. To me – and the English language – that’s a girl. She continued the ridicule after he’d left the room and she’d begun to speak, sandwiching a declaration that agents should pull a CLUE report whether their sellers authorize it or not … to see if they’re lying about anything…

Then she pulled the office tour sheet, on which were printed the agent to agent remarks from the MLS listings.  “Now, this isn’t to embarrass anyone, but you people have to be very, very careful how you write.”  And she began to try to embarrass:

“This – ‘Excellent Newer Neighborhood’ – what’s that mean, no African Americans??  Latinos need not apply?  You can’t say that!”  In fact, anyone who knows the city knows that in that area some old neighborhoods have no sidewalks, the newer ones do.  This one is, well, newer. 

“And this – ‘New Kitchen’ – is that brand new from the foundation up??”  The answer came from the back: “Uh, yea, sure.  Brand new.”  “New foundation?”  “Yep.”  “New walls?”  “Yep. New.”  “Don’t believe you.”  “Don’t care.”  “Remember, the ONLY way you can say ‘new kitchen’ is if it’s new construction.”  “Right.”

Pause to note that of 16,000+ active listings in the Portland Metro Area, 5300+ have the word ‘new’ in the private remarks.

“Is Mary Jo here?  This is hers.  No, of course she’s not here, we would have heard her by now.” Ooh. Catty girl.  Note Mary Jo’s production is on par with Russell’s.  “’Every surface inside and out has been renovated.’  What?  EVERY surface?  Come on!  You have to be careful, people!! Doors are surfaces!  Windows are surfaces! Every surface means every surface!’” 

And my personal favorite:  “Here’s another Mary Jo: ‘…immaculate 3808 SF custom home…’  What?? Immaculate?  What’s that mean?  It means different things to different people; does it have a chip in the counter?  Then it’s not immaculate! NO you can’t use it!”  Good grief. 

She was clearly earnest in her advice, just as her advice was thoroughly nuts.  She obviously was conflating contract law – wherein language does have to be precise – with marketing standards, where fair housing laws occasionally impose silliness but are otherwise, beyond blatantly false advertising, infinitely more open in their interpretations.  I think I’m on solid ground in saying there’s never been a successfully litigated complaint regarding a subjective modifier, especially when that subjective modifier is followed, as in all listings, by the standard ‘information not guaranteed’ disclaimer.

But there are lessons here, even beyond the questionable prudence of buying one’s largest asset through someone who can’t tell the difference between a listing blurb and a binding contract.

It seems to me law school teaches, besides hubris, how not to do things wrong, and how to ferret out the wrong in others.  The paradigm is defensive and reactive. Function defers to form, creativity and risk are boxed into a manageable subset.  That’s terrific if your task is defending someone for murder or suing someone for overbilling, but problematic when your raison d’être is the adversarial finding of fault and your task is, to the greatest extent possible, the amicable transfer of property. If you’re being paid to find something wrong you almost always will.

On the other hand, every good agent I know is an entrepreneur, one who focuses intently on doing things right.  The paradigm is offensive and proactive. Every transaction is different from all others; creativity is imperative, risk a part of everything we do, and a successful result for our clients – function – our driving concern. 

There.  That’s a thousand words to say this:  Strict education and rigid testing standards – as provided by Law schools and the Bar – are no panacea for what ails real estate. It does our clients no good to apply the dye cut approaches to unique problems that would result.  Nor would it automatically eliminate the NAR; lawyers have the ABA to deal with.  With respect to all my good friends who are attorneys – had to get that in – I’d hate to turn real estate agents into another class of stuffy elites.  One’s enough.

PS  Oh, this is delicious.  Just ran a google on my ex attorney:  Here.  Sweet, sweet providence.  Now I know how Edmund Dantes felt.