Broker Risk Management LLP Logo

EMAILS AND TEXTS – BE CAREFUL

by | Oct 18, 2022 | Ethics

BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP

Emails and texts have become the near-ubiquitous and accepted form of business communication in all areas including real estate.  However, email and texting for all their benefits also bring their own set of issues and cautions.

SCENARIO NO. 1:  Listing agent has a very difficult seller.  Agent gets frustrated with the seller’s constant and unreasonable demands on the buyer.  Agent sends an email to the buyer’s agent expressing that frustration and calls the seller various improper names.  Buyer later sues and the emails are produced to the seller.  Seller now turns on the listing agent in anger over the emails.

SCENARIO NO. 2:  Agent gets into a dispute with the home inspector and threatens to assault him.  Buyer later files a complaint with the Department of Real Estate (“DRE”).  The emails with the home inspector are sent to the DRE, who reads the emails and questions the integrity of the agent.

SCENARIO NO. 3:  Agent does not keep agent’s emails and texts in the file.  A complaint is filed before the DRE and the DRE requests the file.  The agent cannot locate the emails and the DRE fines the agent $2000 for not maintaining a proper file.

Here are some tips for using emails and texts in your real estate practice:

  1. Emails and texts are forever: Once you send an email/text, it is stored on your electronic device or company network, and simply deleting it does not permanently erase it.  Texts are also maintained on your cell service provider’s network.  Only specific software designed to clean hard drives can remove emails permanently.  Do not forget the copy you sent to someone – it is on that computer as well.
  2. Emails and texts get forwarded: Do not assume that your email/text will stop at the person to whom you sent it.  In fact, it would be safer to assume that your email/text might be forwarded.
  3. Read your email and texts before sending: Check for accuracy, readability, spelling, and punctuation.  Check for unexpected changes by auto correct.
  4. Emails and texts cannot be retrieved: Read the email/text carefully before hitting “Send.”    While some email/text platforms do allow for limited ability to withdraw or cancel the message, once it’s gone – it’s gone.
  5. Most emails and texts are discoverable: Trial attorneys routinely subpoena email/text records.  Emails and texts are business records that can be used in litigation.  So, that email/text you sent to your manager or a fellow worker making snide remarks about your, or another agent’s, client can be discovered and embarrassingly used against you.  However, email communications between an attorney and a client regarding legal matters are protected from discovery by the attorney-client privilege.
  6. Check the “To” and “CC” lines before you send: It is easy to send an email /text to the wrong person or persons.   Make sure that you have selected the right recipient(s) before hitting “Send.”
  7. “Reply” vs. “Reply to All”: If you receive an email/text sent to you and others by the sender and you want to make a remark only to the sender, be careful not to hit “Reply to All.”  This can lead to embarrassment, or even legal troubles.
  8. Be careful when forwarding emails and texts: Sometimes you may want to forward an email/text to another person.  First check to see if there is a communication string attached to the email/text that you are forwarding.  That string may contain confidential, embarrassing or even legally significant information not intended for others.  Instead, consider copying and pasting the part that you want to forward.
  9. Be professional: Emails, and especially texts, are easy to jot off quickly in a friendly tone.  But, bring all of your professional skills to the writing of emails/texts.  Re-read the email/text before you send it.  Whether you have used correct spelling, syntax, punctuation and word usage will tell a lot about your thoroughness and attention to detail.
  10. Slow down: We all get too busy and it is easy to start sending emails quickly.  But, slow down and observe the above tips.  They can save you from embarrassment, from losing a client, or even from a lawsuit.
  11. Light-of-Day Test: Do not put anything in an email/text that you do not want to see projected six-feet high on a courtroom wall.  See number 5, above.
  12. Read Before Responding: Read incoming emails before responding.  If an email is only partially read, the response may be improper or non-responsive. If there is a string of emails check the most current one before responding.
  1. Copy to Broker File: The DRE requires that all emails and texts, other than those that are “ephemeral” (“Being of temporary or passing interest”), must be in the Broker file.  The DRE has taken the position that emails and texts should be put in the file on an ongoing basis during the transaction.

 

 

This Weekly Practice Tip is attorney-client privileged and for the exclusive use of clients of Broker Risk Management and their agents.  It may not be reproduced or distributed without the express written consent of Broker Risk Management.  The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.