Assisting your client in selling or acquiring property inevitably puts you in contact with others looking for information. For example, you may be contacted by an insurance broker looking for details about a property to process the buyer’s insurance application and potentially satisfy a purchase agreement’s condition on insurability.
It is important to remember that these communications create situations where errors could potentially be made and where complaints or claims could be advanced. To be mindful of how these interactions proceed and to manage the risk of a potential claim occurring, take a moment and ask yourself these five questions before proceeding.
1. Should I Provide Answers at All? When asked for information by someone other than your client, it is entirely reasonable to not provide the requested information and to refer that inquiry back to your client. Simply because someone other than your client has contacted you does not mean you are obligated to answer them. In fact, there are relatively few situations where you are professionally obliged to provide a substantive response. Further, the likelihood that you have direct personal knowledge of the requested information is low.
2. Am I Authorized to Communicate with This Person? If you are willing to respond to an inquiry from a non-client, first consider whether you have your client’s authorization to do so. Do not assume that the person inquiring is also acting in your client’s interest and do not accept their word at face value. Remember that misunderstandings happen, that circumstances change, and that you owe your client certain obligations of confidentiality. Confirm with your client that you are authorized to communicate on their behalf and be sure to keep a record of that authorization.
3.What Information Am I Authorized to Provide? Having authorization to communicate with a non-client and having authorization to provide specific information can be two different things. If authorization to communicate is provided by your client, discuss the requests being made and the information being provided in response. Again, be sure to confirm your client’s authorization to communicate any specific information and keep a record of that authorization.
4.Am I Clear About the Source of the Information Being Provided? It is likely that the non-client making the request, such as an insurance broker, believes that you personally have direct knowledge of the information being requested. Most likely, you do not. Make sure that your communication is clear about the source of your information and that it is explicit when the information does not arise from your own personal experience. If the information is obtained from a listing document or a property disclosure document, identify that source and provide a copy if appropriate and authorized. To prevent your making a misrepresentation, avoid putting any information into your own words. Changing language from “a few” to “some” or from “newer” to “new” can alter the meaning of a representation, particularly where the terminology is subjective and open to interpretation. Where possible, quote the information, copy and paste the information, or convey the source of the information in full, and always identify your source to make it clear that the information is not your own.
5.Should I Assist My Client in Providing Information? To manage your potential risk while also providing service to your client, consider assisting your client in responding to an inquiry rather that responding to it yourself. Assist your client by providing them with the necessary information and/or documentation needed to respond to the inquiry and let your client be the one to respond. Acting in this way supports your client’s control of the distribution of any information, maintains your client relationship, and lessens your risk of sharing any information inappropriately. Again, always keep a record of your communications with your client while assisting them in the event that a dispute later arises.
Asking yourself these questions when being approached for information by anyone other than your client will help to ensure that you are mitigating the risk of a problematic situation while still providing value to your client.
