Preface: Probate attorneys fees are set by statute.  A lawyer’s fees in probate are not necessarily increased or decreased by more involvement with the realtor selection process.

Under ethical rules promulgated by California, lawyers must refrain from making contact with a person represented by a lawyer.  The lawyer may only communicate with that person’s legal representative.  This is to ensure that one lawyer does not undermine the relationship between attorney and client and to also keep the dialogue between lawyers, as opposed to splintered discussions between lawyers, parties, and lawyers with the parties themselves.  However, this ethical rule is, as far as I know, unique to the legal profession.  Accountants may speak to anyone else, even if that person has an accountant.  Doctors may speak to any else, even if that person is the patient of another doctor.

It may seem ridiculous to limit accountant or doctor communications, but there are a few circumstances where I think people would benefit from limited communication from certain professionals.  One of those circumstances is within the probate realm.  As an estate goes through probate, the assets are inventoried and oftentimes sold so that the assets can become liquid to distribute to beneficiaries (e.g., a house is sold so that it can be “split” between multiple beneficiaries who do not want to live in and maintain the house).  In this situation where the estate’s real property is sold, a realtor is often used to market and sell the property.  The broker is hired by the estate’s personal representative (the executor or administrator).

While the personal representative of the estate is often represented by an attorney, there are no limits as to whom a realtor may contact like there are for lawyers.  Therefore, a realtor can keep an eye out for the public notices denoting recent probate filings (all public records) and then cold-call each and every representative of each new probate filing.  It’s something akin to ambulance chasing, except it’s more like hearse chasing!  As you can imagine, the realtor has a financial interest in getting the listing–the commission.  The realtor will also try to steer the client toward early marketing and to forgo any court confirmation of the sale in order to get his commission quicker and easier.  Sometimes this meddling by the realtor undermines the attorney’s representation of the personal representative.  Once that probate is filed and the notice is posted, the personal representative of the estate is literally bombarded by realtor phone calls, flyers, mailers, personal visits, etc.  It gets overwhelming.  The personal representative often feels pressure to sign the listing before he/she has authority to act on behalf of the estate.  It’s ugly.

If there is a place other than the legal industry where there should be limited communication with represented individuals, this is surely one of them.  With the stress of going through the funeral process, sifting through a dead person’s records and property, and answering to heirs who want their distribution of the estate, the representative must also deal with greedy realtors looking to score a listing.  When trying to counsel the client to be very careful in choosing the realtor, the realtor oftentimes convinces the personal representative that the lawyer is merely dragging his/her feet.  It can be an ugly push-pull.  If realtors were required to communicate with the estate representative through his/her attorney, then this predatory behavior would at least be hindered.  In this case, more lawyer involvement is beneficial.