REALTOR® A, a residential broker, worked in a market area that included an attractive suburb of a large city. At the time REALTOR® A launched a new advertising program, there were a number of houses for sale in the neighborhood listed exclusively with other REALTORS®, each having the respective listing broker’s sign on its front lawn.
Working with his advertising agency, REALTOR® A developed a special e-mail solicitation describing the service of his offices. He employed a commercial e-mail distribution service to purchase the e-mails of every homeowner in REALTOR® A’s market area.
The e-mail distribution service sent REALTOR® A’s e-mail solicitation to all the homeowners in his market area, including houses that had other REALTORS®’ signs in the front yard. Several of the REALTORS® whose clients received REALTOR® A’s e-mails filed complaints with the Association against REALTOR® A. The Grievance Committee considered the complaints and referred them to the Professional Standards Administrator to schedule a hearing by a Hearing Panel of the Professional Standards Committee at which time all of the complaints would be considered. The complaints charged REALTOR® A with unethical conduct in failing to respect the exclusive agency of other REALTORS®.
At the hearing, REALTOR® A defended his action by saying that the distribution of his e-mail solicitation was widespread in nature; that it had been carried out by a commercial distribution service; and that it was of the same nature as television or social media advertising that might come to the attention of some clients having exclusive listing contracts with other REALTORS®.
The Hearing Panel’s decision noted that REALTOR® A, in designing his advertising campaign, did not direct his e-mail to property owners whose identity had come to REALTOR® A’s attention through information disclosed by other REALTORS® consistent with their ethical obligation to cooperate with other brokers under Article 3 of the Code of Ethics; e.g., through a “for sale” sign or through information disseminated through a Multiple Listing Service. Rather, REALTOR® A’s advertising campaign was directed in an indiscriminate manner to all property owners in a given geographical area. Furthermore, the medium REALTOR® A chose for his advertising campaign was an e-mail, which property owners could read or delete as they saw fit. The panel determined that this form of communication does not harass a property owner, as would telephone calls or direct personal contacts. The Hearing Panel, therefore, held that REALTOR® A’s advertising campaign did not violate Article 16 of the Code of Ethics.
