On July 14, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
Preview
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 05:26 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1202 RECEIVED NYSCEF: 03/23/2022
EXHIBIT 52
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 05:26 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1202 RECEIVED NYSCEF: 03/23/2022
From: Arlt, Lewis
Sent: Tue 4/21/2015 9:34 AM (GMT-04:00)
To: Dalton, Debra; Levine, Brian; Landis, Cynthia; Chrystal, Toni
Cc:
Bec:
Subject: Designated Agency
Attachments: The iistingagent who has a buyer client for his own property.docx
Dear All,
Attached please find my reaction to Don's remarks last night. I felt
itimportant to stand up for D.A,
before we find ourselves hurtling whole hog down the dubious road of individual dual agency. Balancing
risk is the here. - or at least for future detailed elucidation - tosellers at the
key Disclosing referencing
time of the listingisessential to managing their expectations about how you willhandle the various
eventualities that arise.
Cheers,
Lewis
Lewis Arlt
Licensed Real Estate Associate Broker
Brokerage Manager
Houlihan Lawrence
32 Popham Road
Scarsdale, NY 10583
Office 914-723-8877
Cell 914-309-5766
CONFIDENTIAL HL00067633
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 05:26 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1202 RECEIVED NYSCEF: 03/23/2022
The listingagent who has a buyer client for his own property.
In practice, Buyer Agency iscommon, because buyers want itand rightlyfeel they should receive a higher levelof
service. But Exclusive Right to Represent contracts are rare, because they are usually too binding, and so buyers and
agents shy away from using them. Work with a buyer is therefore a matter of convenience. On the other hand, a seller
signs a legally binding Exclusive Right to Sell contract with the agent and the company. Itis logicalthat severing the ties
and responsibilities of this contract are of greater significance that those with most buyers. Itis highly likelythat the
agent knows substantial confidential information about the seller. So when dual agency isproposed, why should itbe
equally easy to turn both clients into customers? In most instances, both principals desire to retain an agent to
advocate for them and negotiate strongly on their behalf. Dual Agency precludes this. An individual agent cannot fully
represent and advocate for two opposing interests.
Agency," Agency,"
"Designated in itsspiritand intent, isa response to the inherent awkwardness of "Dual as practiced
by a single agent.
In order to avoid disengagement a fiduciary, the client is offered thisalternative : a different agent - one who can
by
continue to provide most of the fullrange of fiduciary duties: advocacy, obedience, competence, care, and
accountability. The only lacking element is the divided loyalty produced by keeping the seller's confidential information
confidential. But since the designated agent presumably has been chosen precisely because they know nothing
confidential about the other client, thisisnot a burdensome task.
IfDesignated Agency isexplained correctly, so the clientisshown the advantage, the buyer client does not feeldumped,
but rather appropriately provided with uninterrupted client-level service, which the seller'sagent can no longer provide.
And the sellerclient continues to work with their agent as before, leaving their contract and relationship unchanged.
The fear with designated stems from the notion that the designated agent will - either or
agency inadvertently
intentionally -reveal confidential information about the other client that the agent had previously learned. And
conversely, ifthey don't disclose this information to their new client,they are not their
fulfilling new fiduciary
responsibilities. Either way lies risk. But, by definition, the designated agent and the listingagent are forbidden from
revealing confidential information, so ifthis isexplained to the clients, the agents are protected.
The most important benefit isthat by providing a new agent for the buyer client, the firstagent is given deniability and
protection against charges of self-dealing: she can'taccidentally or with intent reveal to her buyer client confidential
information about the seller, or vice versa, since she now has no contact with that buyer. The wall of confidentiality is
strengthened exponentially. Itno longer relies on the virtue and skillof the single true agent. Itis buttressed by the
physical separation of the agent from one of the principals.
With true Dual Agency, this one agent isrequired to use extraordinary skilland iron willpower to avoid crossing the line
in multiple conversations with both former clients. Itis a stiff
test of abilityto avoid temptation. More importantly it
creates to an observer the perception that the opportunity for self-dealing isconstant, and virtually irresistible.
CONFIDENTIAL HL00067634
Document Filed Date
March 23, 2022
Case Filing Date
July 14, 2018
Category
Commercial Division
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FILED: WESTCHESTER COUNTY CLERK 03/23/2022 05:26 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1202 RECEIVED NYSCEF: 03/23/2022 EXHIBIT 52 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 05:26 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1202 RECEIVED NYSCEF: 03/23/2022 From: Arlt, Lewis Sent: Tue 4/21/2015 9:34 AM (GMT-04:00) To: Dalton, Debra; Levine, Brian; Landis, Cynthia; Chrystal, Toni Cc: Bec: Subject: Designated Agency Attachments: The iistingagent who has a buyer client for his own property.docx Dear All, Attached please find my reaction to Don's remarks last night. I felt itimportant to stand up for D.A, before we find ourselves hurtling whole hog down the dubious road of individual dual agency. Balancing risk is the here. - or at least for future detailed elucidation - tosellers at the key Disclosing referencing time of the listingisessential to managing their expectations about how you willhandle the various eventualities that arise. Cheers, Lewis Lewis Arlt Licensed Real Estate Associate Broker Brokerage Manager Houlihan Lawrence 32 Popham Road Scarsdale, NY 10583 Office 914-723-8877 Cell 914-309-5766 CONFIDENTIAL HL00067633 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 05:26 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1202 RECEIVED NYSCEF: 03/23/2022 The listingagent who has a buyer client for his own property. In practice, Buyer Agency iscommon, because buyers want itand rightlyfeel they should receive a higher levelof service. But Exclusive Right to Represent contracts are rare, because they are usually too binding, and so buyers and agents shy away from using them. Work with a buyer is therefore a matter of convenience. On the other hand, a seller signs a legally binding Exclusive Right to Sell contract with the agent and the company. Itis logicalthat severing the ties and responsibilities of this contract are of greater significance that those with most buyers. Itis highly likelythat the agent knows substantial confidential information about the seller. So when dual agency isproposed, why should itbe equally easy to turn both clients into customers? In most instances, both principals desire to retain an agent to advocate for them and negotiate strongly on their behalf. Dual Agency precludes this. An individual agent cannot fully represent and advocate for two opposing interests. Agency," Agency," "Designated in itsspiritand intent, isa response to the inherent awkwardness of "Dual as practiced by a single agent. In order to avoid disengagement a fiduciary, the client is offered thisalternative : a different agent - one who can by continue to provide most of the fullrange of fiduciary duties: advocacy, obedience, competence, care, and accountability. The only lacking element is the divided loyalty produced by keeping the seller's confidential information confidential. But since the designated agent presumably has been chosen precisely because they know nothing confidential about the other client, thisisnot a burdensome task. IfDesignated Agency isexplained correctly, so the clientisshown the advantage, the buyer client does not feeldumped, but rather appropriately provided with uninterrupted client-level service, which the seller'sagent can no longer provide. And the sellerclient continues to work with their agent as before, leaving their contract and relationship unchanged. The fear with designated stems from the notion that the designated agent will - either or agency inadvertently intentionally -reveal confidential information about the other client that the agent had previously learned. And conversely, ifthey don't disclose this information to their new client,they are not their fulfilling new fiduciary responsibilities. Either way lies risk. But, by definition, the designated agent and the listingagent are forbidden from revealing confidential information, so ifthis isexplained to the clients, the agents are protected. The most important benefit isthat by providing a new agent for the buyer client, the firstagent is given deniability and protection against charges of self-dealing: she can'taccidentally or with intent reveal to her buyer client confidential information about the seller, or vice versa, since she now has no contact with that buyer. The wall of confidentiality is strengthened exponentially. Itno longer relies on the virtue and skillof the single true agent. Itis buttressed by the physical separation of the agent from one of the principals. With true Dual Agency, this one agent isrequired to use extraordinary skilland iron willpower to avoid crossing the line in multiple conversations with both former clients. Itis a stiff test of abilityto avoid temptation. More importantly it creates to an observer the perception that the opportunity for self-dealing isconstant, and virtually irresistible. CONFIDENTIAL HL00067634