Ethics-hearing Q&A

The standard of proof, publication of violators’ names, and the requirement to testify.

Q   A client filed an ethics complaint against me. As far as I’m concerned, it’s just his word against mine. I assume that I’m innocent until proven guilty, right? Does he have to prove the allegations beyond a reasonable doubt like would be the case in a criminal trial?

A   Yes, you are innocent unless proven to have violated the Code of Ethics. The standard of proof required for a violation of the Code of Ethics is "clear, strong, and convincing." As stated in NAR’s Code of Ethics and Arbitration Manual, clear, strong, and convincing is defined as "that measure or degree of proof which will produce a firm belief or conviction as to the allegations sought to be established."

Note that the standard of proof for an arbitration hearing, however, is based on "a preponderance of the evidence." As stated in the Code of Ethics and Arbitration Manual, "Preponderance of evidence shall be defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the facts sought to be proved are more probable than not."

Q   I think our board should buy an ad in the local paper at least yearly and print the names of REALTORS® found to have violated the Code of Ethics. In my opinion, that would keep people in line better than the current disciplinary options. Any reason we shouldn’t do this?

A   Yes. The reason your board should not print names of ethics violators in the local newspaper is that NAR does not allow it. Your board may only print those names in an official communication vehicle of the board. There are other requirements as well:

• The board must adopt procedures to authorize publicizing violators’ names
• Publication can only occur after a second violation occurs within three years
• The name of the violator’s firm cannot be published
• Publication must be consistent and uniform
• The only information that may be published is the violator’s name and the article(s) violated as well as the discipline imposed. In cases where the violator’s name is similar to another member’s name, the violator’s license number or office address (or both) may also be published.

Q   An ethics complaint has been filed against me. Do I have to testify at an ethics hearing? I know that pleading the fifth looks bad, but I’m so nervous about this hearing that I think I might look worse if I answer. What are my options here?

A   Your options are limited. As the respondent in an ethics complaint, you must testify. In fact, no REALTOR® may refuse to answer questions put directly to him or her at an ethics or arbitration hearing. If you think it will help you calm your nerves, or if you feel it will benefit you in other ways, you may choose to be represented by legal counsel. You are free to confer with counsel prior to answering any questions.

Send your questions about ethics to texasrealtor@texasrealtors.com or fax to 512/370-2390. Not all questions received can be answered.

Buyers & sellers, visit www.texasrealestate.com.
REALTORS®, visit www.tar.org.