The Counselor Is In
The Counselor Is In
RM: Can you talk about the role of the general counsel?
Johnson: NAR’s general counsel is responsible for the association’s Legal Affairs and Board Policy and Programs divisions. The Legal Affairs division identifies and responds appropriately to the legal needs of NAR, its subsidiaries, affiliates, state and local associations, MLSs, and members. The Board Policy and Programs division works with state and local boards, MLSs, and members to develop and implement policies and procedures ensuring ethical, professional conduct on the part of REALTORS®, including fair and consistent enforcement of the Code of Ethics, membership duties, and economical and equitable dispute resolution processes.
RM: How do those divisions help our members do business?
Johnson: The Legal Affairs team stays abreast of litigation, laws, and potential liabilities affecting associations and members so we can provide helpful risk management education and resources in a timely manner. Members are able to use that information to implement safeguards in their office procedures and business activities. We also support members involved in litigation that present significant legal issues to the real estate industry; preserve the integrity and value of NAR’s trademarks; and provide professional liability insurance to state and local associations and their MLSs.
The Board Policy team helps members do business by establishing and maintaining the REALTOR® Code of Ethics. We provide ethics training courses and create policies and procedures to ensure vigorous, fair, and impartial enforcement of the Code by local and state associations. The Board Policy team also helps members cooperate efficiently and effectively through multiple listing services.
RM: Speaking of the REALTOR® trademark: Can you tell us about how you address trademark violations by members?
Johnson: As a benefit of membership, members are licensed to use the REALTOR® trademark in connection with their name and their firm name in order to identify themselves as members of NAR. Ensuring the proper form and contextual use of the REALTOR® trademark is important to preserving its high value and brand recognition. When we learn that a member is misusing the mark, such as using it in connection with a descriptive word or phrase like “Your Local REALTOR®” or “Hometown REALTOR®” or “bestrealtor.com,” we inform the member of the improper use and seek compliance. We also direct members to the rules and two brief animated videos explaining proper use of our trademark available in the Membership Marks Manual on REALTOR.org.
RM: Could you explain in greater detail how NAR gets involved with members’ individual legal cases?
Johnson: NAR’s Legal Action Program assists members involved in litigation that presents legal issues of significance to the association, the real estate industry, or property rights generally by providing financial assistance and, sometimes, amicus curiae briefs in those cases. The Legal Action Committee seeks to support applicants presented with legal issues that have a nationwide effect or the potential for widespread impact on our members. For example, the Legal Action Committee recently supported a case before the Ohio Supreme Court regarding a broker who was found to be liable for the fraudulent acts of a salesperson. The lower court said that the broker is necessarily liable for the acts of an affiliated salesperson because the broker receives a commission for the transaction. The Legal Action Committee decided to support that case with an amicus brief arguing that courts should consider all the facts and circumstances related to the transaction before determining whether liability exists and not base liability solely on the fact that the broker received a commission in connection with the transaction. We’re awaiting a decision in that case.
RM: For many years, your department has been tracking the legal landscape to help identify the most pressing challenges our members face in that arena. How does that help members do business?
Johnson: The Legal Scan has always been a valuable tool to help members and their legal counsel identify trends in litigation affecting real estate professionals. The report had been compiled every two years, but we’ve recently improved this resource by offering it on a quarterly basis. This new “Legal Pulse” is a valuable tool that will help NAR and members identify trends as they unfold across the country, and will help us respond as needed, either legislatively or by providing effective risk management resources to members. The Legal Pulse will be available to members on REALTOR.org approximately one month after the end of each calendar quarter.
RM: In addition to serving as general counsel, you’re working on a master’s degree in information technology and privacy law. Can you talk about that?
Johnson: Technology is changing the way everyone does business, including the real estate industry. My pursuit of this degree requires me to keep current on the latest legal issues dealing with data security, privacy, software, and technology, all of which will be relevant in helping our members do business in years to come.
RM: Looking ahead, what do you see as key real estate technology issues from a legal prospective?
Johnson: Managing property listing content will continue to be an issue as technology evolves. We try to help members understand what their listing content contains and how to exercise the desired control over it, including considerations related to licensing, reproduction, and distribution. Also, members are using social media at an increasing rate, so it’s important to keep them informed of the potential legal risks.