From: Jay Reifert [true-agents@true-agent.com] Sent: Wednesday, January 30, 2002 6:19 PM To: Oppose the WRA--Defeat Designated Agency Subject: No Higher Standard--The Common Law of Agency [This message is going out to thousands of Wisconsin Realtors, almost 500 governmental officials--including all State Legislators and their respective staffs, the Governor of Wisconsin and most candidates for Governor of Wisconsin, the Attorney General of Wisconsin, over 425 Consumer Advocacy Groups and/or individual Consumer Advocates, over 285 Registered Wisconsin Lobbyists and over 190 Media Outlets.] ------------------------------------------------------------- No Higher Standard--The Common Law of Agency Please Note: A number of people have been asking for factual references. After the prefacing remarks immediately below and the closing remarks at the very end, this message will be completely factual, except where it is necessary to give BRIEF explanation for the sake of clarity/ease of use. -------------------------------------------------------------- Begin Preface For over three hundred years--yes, that's right, it precedes even the founding of this nation--the common law of agency has been the underlying legal framework for establishing how agents are to serve their clients. These laws most likely originated from the understanding of one basic, common human flaw...left to our own devices, we will most likely choose the course of action that is most beneficial to US. To keep agents from taking advantage of their clients, the common law of agency evolved. The basic precept of the common law of agency is that the agent is to put the interests of the client ahead of all others...including his or her own. In three hundred years...in three thousand years...this need has still not diminished, as basic human nature has not changed. Therefore, agents--experts who are retained by clients to help them do things which they either will not do for themselves, or choose not to do for themselves--required legal guidelines to keep them from putting their own interests ahead of that of their clients. Designated Agency threatens the common law, and the protection of consumers/citizens by allowing those who are ethically challenged, or even those with criminal intent, the ability to use the law as a shield to protect them for engaging in what would previously have been illegal activities under the legal concept of undisclosed dual agency. No law should ever be passed that gives such obvious opportunity for abuse. End Preface ------------------------------------------------------------------ As you probably have little idea who I am, and why you should trust my assertions with regards to the common law of agency and other such matters, you will now have access to a reference source which is widely accepted as THE source for information on the common law of agency. According to Harvard and many other prestigious sources, the "Restatement of the Law, Agency (Second)" is an, if not the, authoritative source for understanding the common law of agency. In this message, you will be provided with an internet link that will take you to a copy of Chapter 13 of this exhaustive work, which sets forth the "Duties and Liabilities of Agent to Principal". Here is where you will have the ability to judge for yourself what is gained by having a common law agent on your side. Prefacing these excerpts, will be Harvard's endorsement, some brief introductory material and then, Chapter 13. I would submit for your consideration that the most important part of each Section is the bold faced paragraph which is to the immediate right of each Section Number, as it gives the applicable principle of the law. (Fortunately, it is usually a brief, common sense summary of the legal principle being examined.) Even so, you will have the ability to review the commentary as well--if you desire--as by such review you can gain further understanding of the principle being defined. (As you review this information, please keep in mind that agency level duties are owed at the FIRM level, not merely the licensee level.) In order to access this reference material, you will need to have the free Adobe Acrobat Reader on your computer, an essential tool for any serious internet user. If you do not have it, you can download it--free--by going to http://www.adobe.com . Here is the link to the site that houses the pertinent portion of the Restatement of the Law, Agency (Second): http://www.true-agent.com/restatement.pdf Please note that the document which your web browser will be retrieving, or that you will be downloading, is a very large file and that--if you're not using a high speed internet connection like a cable modem, DSL or T1 line--I would suggest clicking the link, and then checking back periodically to see if it has completely loaded. Here are the pertinent Sections from the Restatement, identified first by Section number then by page. Upon review of this information, you will begin seeing just how much an agent/firm truly owes his/her client: Chapter 1 ----------------- Section 1, Page 7 Agency; Principal; Agent Chapter 13 ----------------- Section 377, Page 174 Contractual Duties Section 379, Page 177 Duty of Care and Skill Section 381, Page 182 Duty to Give Information Section 382, Page 185 Duty to Keep and Render Accounts Section 383, Page 187 Duty to Act Only as Authorized Section 385, Page 192 Duty to Obey Section 387, Page 201 (Duty of Loyalty) General Principle Section 388, Page 203 Duty to Account for Profits... Section 389, Page 205 Acting AS Adverse Party without... Section 390, Page 208 Acting AS Adverse Party with... Section 391, Page 212 Acting FOR Adverse Party without... Section 392, Page 215 Acting FOR Adverse Party with... Section 394, Page 219 Acting for One with Conflicting Interests Section 395, Page 221 Using or Disclosing Confidential Info... Section 396, Page 223 Using Confidential Information after... ------------------------------------------------------------------ To understand more about how agency-level obligations occur at the firm level, not the individual licensee level, you may want to review the ethical standards to which attorneys must adhere when representing clients by visiting: http://www.true-agent.com/common_law_ethics.pdf The same is true of real estate agents under the common law. See Sections 391, 392 and 394 of the Restatement . ------------------------------------------------------------------- Final Remarks Arguably, the most important of the previous Sections are those that deal with the topics of Loyalty, Confidentiality, Accounting, Notice, Disclosure and Using Reasonable Skill and Care as these are the duties most frequently being performed by, at least, real estate agents. At its simplest, the relationship between the agent/firm and the principal/client can be summed up in that the agent/firm is expected to place the interests of the client ahead of all others, including their own. Agency is not about sales. Agency is about FIDUCIARY service. As such, Designated Agency is not good for the consumers of the State of Wisconsin, as it encourages deal-making, without the protections for the client that were found under the common law. When one broker can appoint an agent to represent a seller client of the firm and also appoint an agent to represent a buyer client of the firm IN THE SAME TRANSACTION, there is not only motive and opportunity for mischief...but, under Designated Agency, there would be the blessing of the law. Please oppose Designated Agency. Please contact your legislator and tell them that you oppose Designated Agency. Write them...call them...email them, or the Wisconsin Realtors Association will succeed in trampling on even more of your rights. To find out who your legislators are and how to contact them, visit this link: http://www.legis.state.wi.us/wamltest/ Thank you again for your time and patience. Sorry if this message was rather dry and boring. I guarantee you, the next one will be anything but... -- Sincerely Yours, Jay Reifert, Broker/Owner*****************Excel-Exclusive Buyer Agency 100% Homebuyer Representation********5136 E. Hilltop Road 100% Of The Time****************************Madison, Wisconsin 53711 South Central Wisconsin's ONLY********(800)928-9379, Toll Free Full-Time Exclusive Buyer Agency Firm.***(608)273-8841, Office Visit http://www.true-agent.com ***********(608)273-8388, Fax Machine or mailto:true-agents@true-agent.com Check out our NEW website, at: http://www.Buy-Madison-Real-Estate.com