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Maitland Horler Ethical Agents - An Oxymoron?

Peter Mericka B.A., LL.BOPINION
by Peter Mericka B.A., LL.B Real Estate Lawyer and Qualified Practising Conveyancer Victoria Lawyers Real Estate

"Maitland Horler Ethical Agents" is an estate agency in Mentone. And yes, their name really does include the words "Ethical Agents".

OxymoronDid Maitland Horler Ethical Agents actually earn the title "ethical agents?" Have they been voted "ethical" by some independent consumer organisation? Perhaps they've compared themselves to other estate agents and decided on this basis that they're "ethical".

Of course, it's also possible that they're aware of consumer concerns about unethical behaviour in the real estate industry, and have simply called themselves "ethical agents" as a cynical marketing ploy.

But what if an estate agency trading as "ethical agents" behaves in a manner that is so unethical as to render its name an oxymoron?

Let's examine an incident involving Maitland Horler Ethical Agents, and see if Maitland Horler Ethical Agents has become an oxymoron:
  • The vendor of a property had engaged an unqualied, non-lawyer conveyancer to prepare sale contracts (it is illegal for non-lawyer conveyancers perform legal work or to provide legal advice).


  • A purchaser wanted to buy the property, and approached Maitland Horler Ethical Agents.


  • The conveyancer became aware that the purchasers had engaged a lawyer to represent them, and became concerned about this. She told the estate agent and the vendors that she did not want to have to deal with purchaser's lawyer. (We understand that the conveyancer anticipated "difficulties" in the transaction, but nothing was ever disclosed as to exactly what "difficulties" were involved.)


  • The purchasers became concerned that something shonky was going on, and sought specific pre-contract legal advice on the sale contract.


  • The conveyancer, apparently concerned about lawyer involvement, discussed the matter with Mr. Stephen Horler of Maitland Horler Ethical Agents.


  • Stephen Horler of Maitland Horler Ethical Agents contacted the purchasers and told them that they could not purchase the property if their lawyer remained involved. The purchasers were told that they should engage a non-lawyer conveyancer, or they could not purchase the property.
When a consumer engages a lawyer, it is usually because the consumer wants to feel safe. The consumer wants to know that there is someone who can advise them fairly, and to protect their interests.

Why would an estate agent want a consumer to dismiss their lawyer, and to replace the lawyer with a non-lawyer conveyancer?

More importantly, why would any estate agent believe that he or she has the right to "advise" a consumer that they should forgo legal representation in the most important legal matter that a consumer is ever likely to encounter?

Did "ethical agent" Stephen Horler believe that he was somehow assisting the purchasers by advising them against using their lawyer? Did he believe that he had an ethical duty to contact the purchasers for this purpose?

Why did Stephen Horler, of Maitland Horler Ethical Agents contact the purchasers and advise them to get rid of their lawyer?

We don't know how Stephen Horler justifies his behaviour, but we can make a few further observations:

  • The purchasers could "smell a rat" about the whole transaction, and Stephen Horler's approach, and insisted on retaining their lawyer.


  • The vendors of the property decided not to proceed with their attempts to sell it, and took it off the market all together.


  • The vendor's conveyancer refused to answer any questions about the matter, and would not reply to correspondence.


  • Stephen Horler eventually admitted that his behaviour was quite unethical, but made no apologies.


Conclusion

Estate agents have realised that they can exert a great deal of influence over sale transactions by manipulating those who represent the parties.

The ability of the estate agent to make direct contact with a lawyer's client, and to undermine the lawyer-client relationship is easily adapted as a tool for controlling a party's lawyer. The most outrageous example of such control is where an estate agent advises a consumer dismiss their legal representative.

Such behaviour should be regarded as more than simply unethical; it should be declared criminal.

PS:

Having made clients aware of the behavour of some so-called "ethical" estate agents, we were asked,

"What kind of moron actually advises people not to use a lawyer for a legal matter?"
The obvious answer is,
"An oxymoron!"




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