Ethics for RE Broker Attorneys - New Opinion

According to the NYS Bar Association, in Ethics Opinion 1237, "A lawyer may not accept the referral of real estate closings from a real estate agent who is associated with a real estate company owned by the lawyer where the real estate agent and the real estate company will split the brokerage commission earned on the real estate transaction, regardless of whether the attorney agrees to waive in favor of the real estate clients the portion of the real estate commission due to his real estate agency."

So, a broker / lawyer cannot take referrals of closings from an agent who works at that lawyer's / broker's real estate brokerage. It does not matter if the lawyer "waived any brokerage commission" he would otherwise receive in favor of his client. 

The reason is that his agent will nonetheless receive a commission split and that constitutes the payment for referrals. 

The takeaway is that an attorney should choose to do closings or work in brokerage, not both.

Workplace Sexual Harassment Hotline about to be Established by NYS Division of Human Rights

On March 7, 2022, the NYS Senate joined the Assembly to pass a bill (now going to the Governor to be enacted), which establishes a hotline for complainants of workplace sexual harassment. 

The Bill's Justification explains that "[n]early 75% of all sexual harassment goes unreported," and it envisions that this toll-free hotline, available, "at minimum, Monday to Friday from 9 a.m. to 5 p.m.," which will "connect complainants with experienced pro-bono attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases," will result in more reported claims. 

The issue with this STUPID Bill is two-fold:

1. Who needs a toll-free line in 2022? Aren't we past the time when telephone companies charge per second of use? Don't most people utilize VoIP or cell phones? What decade is the NYS Government operating in? Have they heard of the world wide web? 
2. Why are they referring to pro-bono (free) attorneys on a type of case where the plaintiff can recover their attorneys' fees from the plaintiff, by statute, and almost no plaintiffs pay their attorneys hourly fees? Sounds like a lipservice law to us, no?

Oh, to discourage attorneys from participating in this pro-bono stupid law, it also states that "Attorneys may not solicit, or permit employees or agents of the attorneys to solicit on the attorney's behalf, further representation of any individuals they advise through the hotline relating to discussed sexual harassment complaint." 

Once signed, this law will take effect on the 120th day thereafter and we doubt it will do a single thing to benefit victims because right now, any victim of workplace sexual harassment can and should already contact any attorney that they know of for a free consultation and if a claim is brought, the plaintiff can sue for the defendant to pay their attorneys' fees, as a matter of law.

 

Sexual Harassment & Assault Claims can be Brought by victims as Class Actions in Court

Victims of sexual harassment and sexual assault can now proceed in a class action, with other victims, and can also litigate their case in court, individually or collectively, regardless of having previously executed an arbitration agreement. 

This is really important because powerful companies have traditionally forced their employees and independent contractors to sign predispute joint-action waivers, which prevent victims from bringing joint, class, or collective actions against those companies for sexual harassment and sexual assault. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 invalidated such waivers. Now, victims can work collectively and take on powerful companies in court in the same way that a union equalizes employee bargaining power at the proverbial negotiating table.

The Act also invalidates mandatory arbitration agreements, which heavily favor companies who regularly pay the same arbitrators, know their rules, have relationships, and win a vast majority of the time.

To learn more about this new law, here is an audio recording of my appearance on The Jay Oliver Show explaining the importance of the law right after it was passed by the Senate. To be clear, the recording misstates the law's effectiveness to past claims. The law only applies to claims that "arise[] or accrue[] on or after the date of enactment," which was March 2, 2022. 

 

New Statute Defines RE Brokerage CE Course on Cultural Competency, BUT... Discrimination?

On December 22, 2022, we told you about a new real estate continuing education course requirement on cultural competency and explained that we sought guidance from the Bill Sponsor, James Gaughran, on what was envisioned to be taught under this topic. 

Now, there is a new law that defined cultural competency as "understanding cultural norms, preferences and challenges within our diverse communities."

However, here is the million dollar question - How does this understanding translate into practice where a real estate broker / salesperson cannot change their practice based on their understanding of such cultural norms, preferences and challenges because if they do, they will have engaged in actionable real estate discrimination? 

Anyone? 

New RE Brokerage Law: NYS Funding For Fair Housing Testing Efforts is Updated

On December 10, 2021, we told you about another initiative by New York State to combat discrimination in real estate where, effective as of December 21, 2021, a $30 fee has been added for real estate broker / salespersons licenses to cover the costs of the Attorney General to fund fair housing testing throughout NYS. 

Now that law has been changed to "clarify provisions concerning the disposition of surcharges collected by the department of state on licenses for real estate professionals."

Rather than the surcharge being "payable to the office of the attorney general," now, it is required to be "deposited into the anti-discrimination in housing fund."

This change is effective as of March 26, 2022. 

Lieb at Law Seeks Competitive Litigator to Join Team

Lieb at Law, P.C. wants a competitive litigator to join our team. We serve a blend of top-tier corporate clients and high-net worth individuals in complex litigation and ancillary services. We need a resourceful, analytic, problem solver to help keep our win-rate high. Our practice focuses on litigating real estate and employment issues, but we also touch on estates and injuries. Our culture starts and ends with being on the cutting-edge of the law. This job will include client management, drafting all litigation documents, appearing in court, and more. We want someone who knows that they are more than their current position permits. The sky's the limit.

Resumes to careers@liebatlaw.com 

Desired qualifications:

• 2+ years litigation experience;
• Strategic;
• Experience drafting complex motions;
• Proficient in legal research;
• Must excel in a paperless office;
• Dedicated, organized and detail-oriented; &
• Ability to leverage substance rather than emotion.

The firm’s practice areas include:

• Litigation: Employment Litigation, Discrimination Litigation, Commercial Litigation, Real Estate Litigation, Real Estate Brokerage Litigation, Title Litigation, Plaintiff Personal Injury, Landlord/Tenant, Estate Litigation & more.
• Employment Litigation, Compliance and Trainings: Discrimination, Harassment, Retaliation, Wage and Hour, Restrictive Covenants, Family Medical Leave Act, Alternative Dispute Resolution, Appeals, Employee Handbooks and Policies, Sexual Harassment and Discrimination Training, Wage and Hour Audits & more.
• Legal Compliance for Regulated Industries: Outside Compliance Counsel for regulated professions, Policy Drafting, Policy Implementation, Auditing, Corporate Compliance Trainings.
• Transactions: Commercial and Residential Real Estate Purchase and Lease Transactions, Business Transactions & Negotiations.

10 reasons to work at Lieb at Law:

1. Growth – we are expanding and have tremendous opportunities for you to grow your career

2. Prestige – our attorneys are quoted in newspapers and interviewed on TV / radio; we provide opportunities to teach continuing education to brokers and attorneys

3. Fun – we have a ping-pong table, a BBQ committee, and staff that truly like each other

4. DEI – we don’t just have it internally, but focus our practice on employment and housing discrimination trainings and litigation so that we can help other business bring equity and inclusion into their realms as well

5. Technology – we leverage cloud-based / cutting-edge case management, task management, document generation, and more

6. Media – we have a PR team on retainer, host a weekly podcast, have our own studio, and we want you to be a part of that too

7. Business Differentiator – we own and operate a NYS licensed real estate school with over 10,000 students and countless courses on all fields of real estate law

8. Support – we own a licensed school so clearly, we know how to teach you; not only can we teach you, but we make learning easy because we operate with open doors in a collaborative environment and your success is our goal

9. Life Balance – work hours and billing requirements are reasonable and flexible so that you can have a life outside of the office

10. Respect – you are important, and we will treat you as an equal, not a subordinate

About Lieb at Law, P.C.:

Lieb at Law, P.C. offers legal services with a focus on litigation, discrimination, employment, and real estate. Additional practice areas include real estate brokerage, title disputes, contractual / commercial litigation, landlord / tenant, estate litigation, mortgage foreclosure, surrogate’s court litigation, plaintiff's personal injury / premises liability, land use / zoning, business and real estate transactions. Attorneys at Lieb at Law, P.C. are admitted to practice law in New York, New Jersey, Connecticut, and Colorado while also practicing in the Federal Courts.

The firm is a substance-first law firm where self-confidence, grit, and skill is celebrated and rewarded.

Staff have access to a cloud-based legal research platform so that the latest cases are available everywhere, including at home and in the courtroom. We have a secure, cloud-based case management system that catalogs every thought and action on each matter so that case facts are readily accessible at the stroke of a computer key. Finally, enterprise file sharing, storage, and collaboration software is leveraged to enable the efficient collaboration between attorneys where case strategy and document preparation is fresh and innovative.

We are media legal analysts who appear on TV / radio nationwide. We teach the law that we practice, in continuing education and corporate trainings, so we force ourselves to always stay on the cutting edge of new statutes, regulations, and cases. Lieb at Law is a modern law firm that is at the vanguard of the profession.

Resumes to careers@liebatlaw.com 

New York Establishes Office of the Advocate for People with Disabilities

New law establishes Office of the Advocate for People with Disabilities. The Office assures that disabled people are afforded the opportunity to exercise all of the rights and responsibilities accorded to citizens of New York.

Operating under the Department of State, the Office shall advise and assist state agencies in developing policies designed to help meet the needs of the disabled by:

• Coordinating the implementation of the Americans with Disabilities Act;
• Ensuring that state programs do not discriminate against disabled people; 
• Ensuring that programs provide appropriate services for disabled individuals; and 
• Working with state agencies to develop legislation and potential regulatory changes.

The Office will be headed by a Director, appointed by the Governor. 

Landlords should be actively removing barriers to access so that this new Advocate doesn't bring suit against them for violations of the Americans with Disabilities Act (ADA). 

Increased Fees for NY Real Estate Licenses

Effective January 21, 2022, there will be an increase in the fees for real estate salesperson, real estate broker and real estate branch office licenses. The new fee for salespersons will be $65, the fee for brokers and branch offices will be $185. This increase applies to both initial and renewal applications. 

Reverse Loans Available for Senior Shareholders in New York

Those 62 and older living in cooperative apartment units in New York will soon be able to obtain reverse mortgage loans. The amended law was signed by Gov. Hochul on January 24, 2022.

To qualify, the borrower must certify annually on each anniversary of the loan that they reside in the unit and that it is their primary residence and the borrower's lender will advise the borrower on an annual basis of the name/contact information of the third-party on file (the borrower has the option to appoint a designee to be notified in the event of foreclosure) and provide the borrower a chance to update or change the information for the third-party.

The goal of the amended law is to provide co-op owners the same resources as traditional homeowners and to help senior citizens remain in their homes. 

NYS DOL Publishes Emergency Regulations to Implement NY HERO Act Rules

The NYS DOL published new regulations, retroactively effective to January 1, 2022, as an emergency rule to implement the New York Health and Essential Rights Act (NY HERO Act).

The regulations requires private sector employers to create an Exposure Prevention Plan to eliminate or minimize employee exposure to airborne infectious disease agents, which includes the COVID-19 virus and its variants.

The measure sets forth requirements that employers select and obtain exposure controls appropriate for the exposure risks. These controls must be included in the employer’s Exposure Prevention Plan. As to the plan, the NYS Department of Health has developed a new Model Airborne Infectious Disease Exposure Prevention Plan (Template) and various industry specific model plans (Templates) for prevention of airborne infectious disease.

Employers must enact compliant plans immediately.